| Mount Sinai Hosp. v Dust Tr., Inc. |
| 2013 NY Slip Op 01811 [104 AD3d 823] |
| March 20, 2013 |
| Appellate Division, Second Department |
| Mount Sinai Hospital, as Assignee of Alison Cassani,Appellant, v Dust Transit, Inc., Respondent. |
—[*1] Gerber & Gerber, PLLC (Thomas Torto and Jason Levine, New York, N.Y., ofcounsel), for respondent.
In an action to recover no-fault medical benefits, the plaintiff appeals from an orderof the Supreme Court, Nassau County (DeStefano, J.), entered February 27, 2012, whichgranted the defendant's motion, denominated as one pursuant to CPLR 2221 (a) tomodify so much of an order of the same court entered September 28, 2011, as, uponreargument, granted the plaintiff's motion for summary judgment on the complaint, andto vacate a judgment of the same court entered October 13, 2011, but which was, inactuality, one pursuant to CPLR 2221 (e) for leave to renew its prior opposition to theplaintiff's motion for summary judgment on the complaint and, in effect, upon renewal,vacated the order entered September 28, 2011, and the judgment entered October 13,2011, and, thereupon, granted the plaintiff's motion for summary judgment on thecomplaint only to the extent of permitting it to recover the sum of $18,620.18 from thedefendant, inclusive of interest, costs, and an attorney's fee.
Ordered that the order is reversed, on the law, with costs, the defendant's motionpursuant to CPLR 2221 (e) for leave to renew its prior opposition to the plaintiff'smotion for summary judgment on the complaint is denied, and the order enteredSeptember 28, 2011, and the judgment entered October 13, 2011, are reinstated.
The plaintiff hospital, as assignee of Alison Cassani, commenced this action torecover no-fault medical benefits from the defendant, a self-insured taxi corporation. Theplaintiff moved for summary judgment on the complaint. However, the Supreme Courtdenied that motion on the ground that the defendant had not yet received all requestedverification. The plaintiff subsequently moved for leave to reargue its motion forsummary judgment. The Supreme Court, in an order entered September 28, 2011,granted leave to reargue and, upon reargument, granted the plaintiff's motion forsummary judgment on the complaint, finding that the requested verification had beenreceived. A judgment was entered on October 13, 2011, in favor of the plaintiff andagainst the defendant in the principal sum of $59,609.44, plus interest, costs, and anattorney's fee. The defendant thereafter made a motion, denominated as one pursuant toCPLR 2221 (a) to modify so much of the order entered September 28, 2011, as, uponreargument, granted the plaintiff's [*2]motion forsummary judgment on the complaint, and to vacate the judgment, asserting that thejudgment, together with the total amount of $181,379.82 it previously paid medicalproviders on behalf of Cassani, exceeded its no-fault coverage of $200,000, which wasthe amount of coverage required by the Rules of the New York City Taxi and LimousineCommission (TLC Rules) (see TLC Rules [35 RCNY] § 58-13 [a] [1]; [d][1] [i]). The defendant asserted that the plaintiff may only recover the sum of $18,620.18,which was the available balance of its coverage. The Supreme Court granted thedefendant's motion, and, in effect, upon renewal, vacated the order entered September28, 2011, and the judgment entered October 13, 2011, and, thereupon, granted theplaintiff's motion for summary judgment only to the extent of permitting it to recover thesum of $18,620.18 from the defendant, inclusive of interest, costs, and an attorney's fee.
The Supreme Court improperly granted the defendant's motion, denominated as onepursuant to CPLR 2221 (a) to modify the order entered September 28, 2011. CPLR 2221(a) merely provides that certain motions may be made, on notice, to the judge who signedthe order that is the subject of the motion. In actuality, the defendant sought to presentnew facts in partial opposition to the motion for summary judgment, which were notpresented on the initial motion. Thus, the defendant's motion should have been madepursuant to CPLR 2221 (e) for leave to renew its prior opposition to the motion forsummary judgment, based upon new facts, and we construe it as such. However, thedefendant failed to show its entitlement to that relief. The defendant failed todemonstrate "reasonable justification" for its failure to present such facts on the priormotion (CPLR 2221 [e] [3]).
The issue of partial exhaustion of the defendant's coverage was raised for the firsttime after the judgment was entered, even though the plaintiff had previously moved forsummary judgment on the complaint, seeking a certain amount of benefits (see Westchester Med. Ctr. vLincoln Gen. Ins. Co., 82 AD3d 1085, 1086 [2011]). No reasonable justificationwas provided for the failure to raise the issue of partial exhaustion earlier.
The failure to present such reasonable justification by itself requires denial of thedefendant's motion, and, in any event, the evidence submitted in support of the motion,i.e., an affidavit of the defendant's claims manager setting forth the policy limits and theamount of benefits allegedly paid to other medical providers, failed to establish the orderin which the medical services were rendered, and the order in which the claims werereceived. Thus, on this record, it cannot be determined whether the defendant's purportedpayments were made in compliance with 11 NYCRR 65-3.15.
Although courts possess inherent discretionary power to grant relief from a judgmentor order in the interest of justice, this "extraordinary relief" is not appropriate under thecircumstances presented here (Jakobleff v Jakobleff, 108 AD2d 725, 726-727[1985]; see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 82 AD3d at 1086).Skelos, J.P., Dillon, Hall and Miller, JJ., concur.