Motion that is “Granted to the Extent that Plaintiff Established a Prima Facie Case”… Doesn’t

Forest Park Acupuncture, P.C. v NYCT MABSTOA

Edited by Lawrence N. Rogak

In this PIP suit, both plaintiff and defendant moved for summary judgment.  The motion was resolved, as often happens, with an order stating that the plaintiff’s motion was only “granted to the extent” that plaintiff had established its prima facie case.  The usual custom and practice of such a ruling is that at trial, plaintiff can state that its prima facie case is established by prior order, rest, and let defendant prove its defenses.  In this case, however, defendant appealed, and the Appellate Term reversed.  Because plaintiff had not, in fact, demonstrated to the motion court that it had timely and properly served its bills on defendant [an inference I draw from the decision, though it does not state this], the appeals court vacated the portion of the order that found that plaintiff had established its prima facie case.

The Appellate Term drew a distinction between CPLR 3212(e), which permits a court to grant partial summary judgment, and CPLR 3212(g), which permits a court to limit the issues for trial by deeming certain facts as having been established.   Declaring that the motion was decided under CPLR 3212(g), the Appellate Term held that plaintiff had not submitted evidence sufficient for its prima facie case to be established.

What is the practical effect of this ruling?  Summary judgment motions which result in an order granting them «to the extent» will probably continue to be valid, despite a lack of sufficient evidence of a prima facie case (and/or proof of timely and proper denials) — unless there is an appeal.­­—LNR

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 20, 2015. The order denied defendant’s cross motion for summary judgment dismissing the complaint and, upon, in effect, denying plaintiff’s motion for summary judgment, made, in effect, a CPLR 3212 (g) finding that plaintiff “had established the proper submission of bills to defendant (with a reasonable justification for the late submission).”   ORDERED that the order, insofar as appealed from, is modified by providing that the CPLR 3212 (g) finding in plaintiff’s favor is vacated; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied defendant’s cross motion and stated that plaintiff’s motion was “granted to the extent that plaintiff has established the proper submission of bills to defendant (with a reasonable justification for the late submission),” and that defendant had raised a triable issue of fact with respect to the nonpayment of the claims. Defendant appeals, arguing that so much of the order as “granted” plaintiff’s motion “to the extent that plaintiff has established the proper submission of bills to defendant (with a reasonable justification for the late submission)” should be vacated and that defendant’s cross motion should be granted.

While the Civil Court purported to “grant” plaintiff’s motion for summary judgment “to the extent that plaintiff has established the proper submission of bills to defendant (with a reasonable justification for the late submission),” this was not an award of partial summary judgment as contemplated by CPLR 3212 (e). Rather, the Civil Court, in effect, made a finding for all purposes in the action, which CPLR 3212 (g) permits it to do upon the denial of a motion for summary judgment. Defendant correctly argues that plaintiff has not demonstrated that it should be found to be established for all purposes in the action that the bills at issue were timely and properly submitted to defendant. Consequently, the Civil Court’s CPLR 3212 (g) finding that “plaintiff has established the proper submission of bills to defendant (with a reasonable justification for the late submission)” is vacated. However, defendant’s cross motion is based upon the proposition that plaintiff did not submit the claim forms in question to defendant, and that proposition is not established, as a matter of law, by the record before us either (see Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 230 [2011]). Thus, contrary to defendant’s contention, defendant is not entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is modified by providing that the CPLR 3212 (g) finding in plaintiff’s favor is vacated.[IA]

2017 NY Slip Op 51930(U)

Decided on December 29, 2017

Appellate Term, Second Department