Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 22, 2013. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and, upon a search of the record, granted partial summary judgment to defendant dismissing so much of the complaint as sought to recover for services rendered after November 20, 2009.

ORDERED that the order, insofar as appealed from, is modified by striking the provision granting partial summary judgment to defendant dismissing so much of the complaint as sought to recover for services rendered after November 20, 2009; 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. In opposition, defendant argued that it had timely denied plaintiff’s claims on the grounds of lack of medical necessity and that the amount charged exceeded the amount permitted by the workers’ compensation fee schedule. By order entered February 22, 2013, the Civil Court denied plaintiff’s motion for summary judgment, but held that pursuant to CPLR 3212 (g), plaintiff and defendant had established their prima facie cases and that the sole issue for trial would be the propriety of defendant’s defense which was based upon the workers’ compensation fee schedule. The Civil Court also, upon searching the record, held that plaintiff had failed to rebut defendant’s independent medical examination report which defendant had annexed to its papers in opposition to plaintiff’s motion for summary judgment and awarded defendant partial summary judgment dismissing so much of the complaint as sought to recover for services rendered after November 20, 2009. Plaintiff appeals.

While the court has the power to award summary judgment to a nonmoving party predicated upon a motion for that relief by another party (see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]), here the issue of medical necessity was not the subject of plaintiff’s motion for summary judgment (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). As a result, the court improvidently exercised its discretion when it searched the record and awarded defendant summary judgment dismissing the complaint insofar as it sought to recover for services rendered after November 20, 2009 (see Whitman Realty Group, Inc. v Galano, 52 AD3d 505 [2008]; Ey v Mecca, 41 AD3d 534 [2007]; Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943 [1981]; Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51852 [App Term, 2d & 11th Jud Dists 2008]).

Plaintiff’s remaining contentions are not properly before this court, as these arguments are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order, insofar as appealed from, is modified by striking the provision granting partial summary judgment to defendant dismissing so much of the complaint as sought [*2]to recover for services rendered after November 20, 2009.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on November 13, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on November 13, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

[*1]

Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel), for defendant-appellant.

Andrews, Bernstein, Maranto & Nicotra, PLLC, Buffalo (Richard Nicotra of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered November 17, 2014. The order denied the motion of defendant for summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this breach of contract action seeking no fault benefits under an insurance policy issued by defendant to D & M Collision, Inc. (D & M), a car dealership that allegedly owned the vehicle in which plaintiff was injured when it was struck from behind by another vehicle. Defendant moved for summary judgment dismissing the complaint, contending that the vehicle in question was not owned by D & M, its insured, at the time of the accident and thus is not covered by the policy. We conclude that Supreme Court properly denied the motion inasmuch as there is an issue of fact whether D & M owned the vehicle.

Plaintiff had a business relationship with D & M’s owner whereby plaintiff would use D & M’s dealer credentials to purchase used vehicles at auction. On June 14, 2012, plaintiff, using D & M’s credentials, purchased a 2001 Chrysler 300 at auction for $600. Although plaintiff used his own money to purchase the vehicle, the Retail Certificate of Sale form (form MV-50) issued in conjunction with the sale identifies D & M as the buyer. Approximately two months later, in mid-August 2012, plaintiff agreed to sell the vehicle to Edward Hardy. The title to the vehicle could not be transferred to Hardy, however, until the vehicle passed inspection, and the vehicle could not pass inspection until its computer codes had been cleared. According to plaintiff, the vehicle had to be driven a certain distance in order for the codes to be cleared.

On August 31, 2012, the vehicle was involved in an accident while Hardy was driving and plaintiff was a passenger. At that time, title to the vehicle still had not been transferred to Hardy because the codes had not yet been cleared, and the vehicle therefore had not yet passed inspection. In the accident, plaintiff sustained injuries for which he received medical treatment, and he thereafter sought payment of his medical expenses by defendant under the policy it issued to D & M. Defendant refused to provide coverage on the ground that its policy did not cover the vehicle because the vehicle was not owned by D & M, and plaintiff thereafter commenced this action.

The no-fault coverage defendant provided to D & M covered all vehicles “owned” by D & M. Vehicle and Traffic Law § 128 defines an “owner” as “[a] person, other than a lien holder, having the property in or title to a vehicle.” Generally, “ownership is in the registered owner of the vehicle or one holding the documents of title[,] but a party may rebut the inference that arises from these circumstances” (Fulater v Palmer’s Granite Garage, 90 AD2d 685, 685 [1982], appeal dismissed 58 NY2d 826 [1983]; see also Zegarowicz v Ripatti, 77 AD3d 650, 653 [2010]). Where there is conflicting evidence of ownership, the issue must be resolved by a trier of fact (see Sosnowski v Kolovas, 127 AD2d 756, 758 [1987]; Fulater, 90 AD2d at 685). Moreover, we note that there may be more than one owner of a vehicle and, to the extent that there is more than one owner here, they may be jointly and severally liable to plaintiff (see Vehicle and Traffic Law § 388 [1], [3]; Hassan v Montuori, 99 NY2d 348, 353 [2003]).

Here, the evidence submitted by defendant in support of its motion failed to eliminate all issues of fact whether D & M owned the subject vehicle at the time of the accident. Notably, the vehicle was purchased with D & M’s dealer credentials and, at the time of the accident, D & M had title to the vehicle, and its dealer plates were on the vehicle. Although defendant presented additional evidence seeking to rebut the presumption of D & M’s ownership arising from those circumstances, the court properly concluded that it failed to do so (see generally Aronov v Bruins Transp., 294 AD2d 523, 524 [2002]; Sosnowski, 127 AD2d at 758).

Defendant’s remaining contentions are raised for the first time on appeal and thus are not properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]). Present—Scudder, P.J., Centra, Peradotto, Lindley and Valentino, JJ.

Decided on November 12, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on November 12, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 18, 2012. The judgment, entered pursuant to a decision of the same court dated September 14, 2012, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $8,220.17 on plaintiff’s third cause of action.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated September 14, 2012 is deemed a premature notice of appeal from so much of the judgment entered December 18, 2012 as awarded plaintiff the principal sum of $8,220.17 on plaintiff’s third cause of action (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the parties’ attorneys stipulated that the only issue to be tried concerned the third cause of action, for which plaintiff sought to recover the principal sum of $8,220.17. It was further stipulated that defendant’s witness was an expert. The trial proceeded solely upon defendant’s defense of lack of medical necessity. Following the trial, the Civil Court found in favor of plaintiff on the third cause of action.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

In the present case, the record supports the determination of the Civil Court, based upon its assessment of the credibility of defendant’s witness and the proof adduced at trial, that defendant failed to demonstrate that the services rendered were not medically necessary. As we find no basis to disturb the Civil Court’s findings, the judgment, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on November 12, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 31, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage, in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, or that plaintiff had failed to appear for the EUOs; that defendant lacked justification for its EUO requests; that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests; and that defendant failed to prove that plaintiff had willfully obstructed defendant’s investigation.

Contrary to plaintiff’s arguments, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney, who was present in his office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.

With respect to plaintiff’s contention that defendant failed to demonstrate justification for its EUO requests, the Appellate Division, Second Department, has held that where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Moreover, a review of the record in Interboro Ins. Co. v Clennon (113 AD3d 596) reveals that in that case, the provider argued, as does plaintiff herein, that the insurer’s motion should have been denied pursuant to CPLR 3212 (f), as the provider had not received discovery regarding the reasonableness of defendant’s EUO requests, and that, even if there had been a failure to appear for two duly scheduled EUOs, the insurer had to show that the failure to appear constituted willful obstruction of the insurer’s investigation. In finding for the insurer, the Appellate Division, Second [*2]Department, stated the following:

“the [providers] failed to establish that summary judgment was premature in light of outstanding discovery. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or [that] the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant’ (Cajas-Romero v Ward, 106 AD3d 850, 852 [2013]; see CPLR 3212 [f]). Here, in support of their contention that the [insurer’s] motion was premature, the [providers] did not establish what information they hoped to discover that would demonstrate the existence of a triable issue of fact” (113 AD3d at 597).

Similarly, in the instant case, plaintiff did not establish what information it hoped to discover that would demonstrate the existence of a triable issue of fact (cf. American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [2015]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Plaintiff appeals from a judgment of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered November 15, 2013, which, upon a prior order granting summary judgment, dismissed the complaint.

Per Curiam.

Judgment (Robert R. Reed, J.), entered November 15, 2013, reversed, with $30 costs, defendant’s motion denied, and the complaint reinstated.

Civil Court erred by treating defendant’s motion made pursuant to CPLR 3211(a)(1) and (7) as a motion for summary judgment without providing adequate notice to the parties (see CPLR 3211[c]; Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]). The parties’ motion papers clearly indicated their intent to treat the motion as one made pursuant to CPLR 3211, and the case does not involve a purely legal question without any disputed issues of fact (see Brathwaite v Frankel, 98 AD3d 444, 445 [2012]; see also Drug Policy Alliance v The New York City Tax Commission, 131 AD3d 815 [2015]).

Treating the motion as one for dismissal pursuant to CPLR 3211, we conclude that it should have been denied. Accepting plaintiff’s allegations as true, and according them the benefit of every possible favorable inference, as we must in the context of a motion to dismiss the pleadings (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we find the complaint sufficient to state a cause of action for recovery of first-party no-fault benefits pursuant to an automobile insurance policy issued by defendant (see Genovese v State Farm Mut. Auto. Ins. Co., 106 AD3d 866, 868 [2013]; Innovative MR Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 147[A], 2013 NY Slip Op 50359[U][App Term, 1st Dept 2013]).

Contrary to defendant’s contention, the affidavits submitted in support of its defense – that plaintiff is not entitled to no-fault coverage because it breached a condition precedent under the policy by failing to appear for examinations under oath (EUOs) (see 11 NYCRR 65-1.1) – do not “‘establish conclusively that [plaintiff] has no [claim or] cause of action'” (Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008], quoting Rovello v Orofino Realty Co., 40 NY2d 633, 636 [*2][1976]), and are “not properly considered on a motion to dismiss pursuant to CPLR 3211 (a)(7)” (GEM Holdco, LLC v Changing World Tech., L.P., 127 AD3d 598, 599 [2015]; see Lee v Dow Jones & Co., Inc., 121 AD3d 548 [2014]; Sokol v Leader, 74 AD3d 1180 [2010]). Nor (as defendant effectively concedes), were the affidavits “essentially undeniable” so as to qualify as documentary evidence (see CPLR 3211[a][1]) that conclusively establishes its defense or definitively refutes any claim that plaintiff may have to recover under the policy (see Mason v First Cent. Natl. Life Ins. Co. of NY, 86 AD3d 854, 855 [2011]).

Defendant’s remaining contentions are unpreserved and/or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.