Decided on May 18, 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, Queens County (James E. d’Auguste, J.), entered August 6, 2012. The order, insofar as appealed from and as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment on the first, third and fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the third and fourth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment on the third and fourth causes of action are denied; as so modified, the order 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. Plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first, third and fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the third and fourth causes of action.

The Civil Court properly denied those branches of plaintiff’s motion seeking summary judgment on the first, third and fourth causes of action. While the Civil Court found, in effect, for all purposes in the action (see CPLR 3212 [g]), that plaintiff had submitted the claim forms at issue to defendant and that defendant had not paid these claims within the requisite 30-day period (which findings we do not review on this appeal), the court found neither that defendant had failed to deny these claims or that defendant had issued a legally insufficient denial of claim form with respect to these claims (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), and plaintiff has not made such a showing.

However, the branches of defendant’s cross motion seeking summary judgment dismissing the third and fourth causes of action should have been denied. The ground proffered for the dismissal of these causes of action was that defendant had timely and properly denied the claims underlying these causes of action based on plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). While defendant submitted properly sworn statements by the chiropractor and doctor who were scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations, and therefore defendant failed to establish its entitlement as a matter of law to the dismissal of these causes of action (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment on the third and fourth causes of action are denied.

Plaintiffs, as limited by their briefs, appeal from so much of an order of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), entered March 21, 2014, as denied their cross motion for summary judgment on their first through sixth causes of action, and granted that branch of defendant’s motion seeking to compel plaintiffs to respond to discovery demands.

Per Curiam.

Order (Lynn R. Kotler, J.), entered March 21, 2014, insofar as appealed from, reversed, with $10 costs, plaintiffs’ cross motion for partial summary judgment on their first through sixth causes of action is granted, and that branch of defendant’s motion seeking to compel discovery is denied.

Plaintiffs-providers established their prima facie entitlement to partial summary judgment on the first-party no-fault claims set forth in their first through sixth causes of action (see Insurance Law § 5106[a]; Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313 [2008]. In opposition, defendant failed to raise a triable issue. Indeed, defendant’s own documentary submissions, which included plaintiffs’ claim forms that were date-stamped received by defendant, established defendant’s receipt of plaintiffs’ claims and that payment of benefits was overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]).

Defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignments (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348-349 [2005]). Nor may defendant assert the defense of excessive fees, inasmuch as it failed to establish that its denials were timely issued within the statutory 30-day period (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011], lv denied 18 NY3d 810 [2012]).

Defendant also failed to demonstrate that summary judgment is premature due to outstanding discovery pertaining to plaintiffs’ prima facie case, since defendant did not make the [*2]required showing that further discovery may raise a triable issue of fact (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727 [2006]). Defendant’s speculative contention that further discovery may support its lack of coverage defense is improperly raised for the first time on appeal (see Mount Sinai Hosp. v Dust Tr., Inc., 117 AD3d 921 [2014]), and is, in any event, an insufficient basis for denying plaintiffs’ motion (see Interboro Ins. Co. v Clennon, 113 AD3d at 597]).

In the absence of a cross appeal by defendant, we do not address the propriety of the court’s denial of the request to toll interest. Defendant’s remaining arguments, to the extent preserved for appellate review, have been considered and rejected.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered November 14, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Appeal from order (Gerald Lebovits, J.), entered November 14, 2013, deemed, pursuant to CPLR 5517(b), to be taken from the subsequent order (same court and Judge), entered July 17, 2014, which, upon reargument, adhered to the original determination denying defendant’s motion for summary judgment dismissing the complaint, and so considered, order reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing this action seeking recovery of first-party no-fault benefits by submitting evidence establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his counsel, and that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]).

Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant’s third-party IME scheduler attesting to the affiants’ personal knowledge of their office practices and policies in situations where an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v. Lucas, 111 AD3d at 424). Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]), relied upon by the motion court, does not warrant a contrary result, since in that case the affiant did not demonstrate personal knowledge of the law firms’s practices and procedures in establishing appearances at scheduled examinations under oath (compare Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; accord [*2]Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]).

In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on May 13, 2015

[*1]

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellants.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for respondent.

Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered July 12, 2013, which, to the extent appealed from, declared that defendants-appellants were not entitled to no-fault benefits as a result of a motor vehicle accident due to the claimant’s failure to appear for scheduled examinations under oath (EUO), unanimously reversed, on the law, without costs, the underlying motion for summary judgment denied, and the judgment vacated.

The reason for the EUO request is a fact essential to justify opposition to plaintiff’s summary judgment motion (see American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup Ct, NY County 2013]), and such fact is exclusively within the knowledge and control of the movant. Further discovery on plaintiff’s handling of the claim so as to determine whether, inter alia, the EUOs were timely and properly requested is also essential to justify opposition. Concur—Mazzarelli, J.P., Renwick, Manzanet-Daniels and Clark, JJ.

Decided on May 6, 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 (Wavny Toussaint, J.), entered January 29, 2013. The order denied 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, defendant moved for summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy by virtue of the assignor’s misrepresentation of his address in order to obtain insurance at a lower premium. Plaintiff opposed the motion. The Civil Court denied defendant’s motion, and we affirm.

An insured may be denied no-fault benefits where an insurer submits evidence in admissible form showing that the insured had fraudulently procured the insurance policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d, 11th & 13th Jud Dists 2012]; New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52286[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Defendant argued that when the insured, plaintiff’s assignor, had applied for the insurance policy at issue, he had provided an address in Wappingers Falls, Dutchess County, an area which had a lower premium for coverage than Queens County, where he actually resided. While the certified transcript of plaintiff’s assignor’s testimony at an examination under oath was admissible (see American States Ins. Co. v Huff, 119 AD3d 478 [2014]), the assignor’s testimony failed to eliminate all material issues of fact (see Winegrad, 64 NY2d at 853) as to whether he lived in Queens County, rather than Wappingers Falls, Dutchess County, at the pertinent time. Defendant’s exhibits also included its investigator’s report, which was not sufficient to establish that the assignor did not reside in Wappingers Falls during the relevant period, as the report was based upon statements that constituted inadmissible hearsay (see Petrillo v Town of Hempstead, 85 AD3d 996 [2011]; Saunders v 551 Galaxy Realty Corp., 64 AD3d 564 [2009]). Consequently, as defendant failed to make a prima facie showing that plaintiff’s assignor had made material misrepresentations in order to obtain insurance at reduced premiums (cf. Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; AA Acupuncture Serv., P.C. v Safeco Ins. Co. of Am., 25 Misc 3d 30 [App Term, 1st Dept 2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order is affirmed.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, May 6, 2015

APPEARANCES OF COUNSEL

Freiberg, Peck & Kang, LLP, Armonk (Yilo J. Kang of counsel), for appellant.

Ordered that, on the court’s own motion, the notice of appeal from an order of the same court dated November 6, 2013 is deemed a premature notice of appeal from the amended order entered December 12, 2013 (see CPLR 5520 [c]); and it is further ordered that the amended order is reversed, with $30 costs, and defendant’s motion seeking, in effect, summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff mailed a copy of the summons and complaint to defendant in 2004, pursuant to CPLR 312-a. The record does not contain the signed acknowledgment of receipt required by CPLR 312-a. Nevertheless, in May 2004, defendant served a verified answer, in which it asserted, among other affirmative defenses, lack of personal jurisdiction, as defendant had not been “properly served with process,” and plaintiff’s failure to properly obtain an index number. In 2010, plaintiff purchased an index number and, for the first time, filed with the Civil Court the 2004 summons and complaint along with defendant’s 2004 answer. There is no proof of service upon defendant of the summons and complaint following the 2010 Civil Court filing (see CCA 411). Plaintiff thereafter served a notice of trial and certificate of readiness on defense counsel, and filed it in the Civil Court in 2011.

By notice of motion dated February 21, 2011, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction, or, in the alternative, to vacate the notice of trial. In opposition, plaintiff argued that defendant had waived its jurisdictional defense since defendant had failed to move to dismiss the complaint within 60 days of its service of the answer in 2004, in accordance with CPLR 3211 (e). By order dated November 6, 2013, the Civil{**48 Misc 3d at 61} Court denied defendant’s motion to dismiss the complaint, finding that, although plaintiff had not properly served process, defendant had failed to timely challenge the defective service (41 Misc 3d 1226[A], 2013 NY Slip Op 51842[U] [Civ Ct, Richmond County 2013]).

Since defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) was made after it had served its responsive pleading, the motion was untimely (see CPLR 3211 [e]). However, the record indicates that the parties charted a summary judgment course (see Mihlovan v Grozavu, 72 NY2d 506 [1988]) and, thus, we apply the standard applicable to motions for summary judgment (see Fuentes v Aluskewicz, 25 AD3d 727 [2006]).

Furthermore, we note that the facts of this case, with respect to the issue of whether jurisdiction was acquired over defendant, are similar to the facts in New York Med. Rehab., P.C. v Travelers Ins. Co. (40 Misc 3d 76 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), and our holding herein is in accordance with the decision therein.

“CPLR 312-a, as an alternative to the other methods of personal service authorized by CPLR 307, 308, 310, 311 or 312, permits personal service to be made by first class mail, by mailing a copy of the summons and complaint, together with two copies of a statement of service by mail and acknowledgment of receipt, with a return envelope, postage prepaid, addressed to the plaintiff (CPLR 312-a [a]). The defendant must complete the acknowledgment of receipt and mail or deliver it within 30 days from the date of receipt. Under CPLR 312-a, service is complete on the date the signed acknowledgment of receipt is mailed or delivered to the plaintiff (but cf. CCA former 410 [b]). The signed acknowledgment of receipt constitutes proof of service (CPLR 312-a [b] [1]; 306 [d])” (New York Med. Rehab., P.C., 40 Misc 3d at 79).

In 2004, when plaintiff sought to serve defendant pursuant to CPLR 312-a,

“an action in the Civil Court was commenced by service of the summons (CCA former 400). Service of the summons was complete upon filing proof of service (CCA former 410 [b]), or, in the case of service pursuant to CPLR 312-a, by filing the acknowledgment of receipt, which constitutes proof of service{**48 Misc 3d at 62} (CPLR 312-a [b] [1]; 306 [d])” (New York Med. Rehab., P.C., 40 Misc 3d at 79).

The record in the present case reveals that an acknowledgment of receipt was never signed by defendant and returned to plaintiff. Consequently, plaintiff was required to effect personal service in another manner (see CPLR 312-a [e]; Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]). Since plaintiff did not attempt another manner of service, the purported service pursuant to CPLR 312-a failed to acquire personal jurisdiction over defendant (see Klein v Educational Loan Servicing, LLC, 71 AD3d 957 [2010]; Dominguez, 207 AD2d at 375; Gateway Med., P.C. v Progressive Ins. Co., 30 Misc 3d 144[A], 2011 NY Slip Op 50336[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), and, thus, the action was never commenced in 2004 (see CCA former 400).

“Although no action had been commenced and, thus, defendant’s time to answer had not yet commenced, [in May] 2004, defendant nevertheless served plaintiff with an answer, in which it asserted, as an affirmative defense, lack of personal jurisdiction. Thus, having preserved its jurisdictional defense, the answer could not be deemed the ‘equivalent to personal service of the summons upon’ defendant (CPLR 320 [b])” (New York Med. Rehab., P.C., 40 Misc 3d at 80).

Contrary to plaintiff’s contention, “as there was no viable pending action, defendant cannot be deemed to have waived its defense of lack of personal jurisdiction by failing to make a motion to dismiss this ‘action’ ” (id.) within 60 days of the service of its answer, in accordance with CPLR 3211 (e).

In 2010, after the commencement-by-filing system had gone into effect in the New York City Civil Court, plaintiff purchased an index number and filed the 2004 summons and complaint, as well as defendant’s 2004 answer. The record supports defendant’s contention that it was never served with pleadings bearing the 2010 index number (see CCA 410), and, thus, that personal jurisdiction was not acquired over it under the current system (see CCA 400 [2]; New York Med. Rehab., P.C., 40 Misc 3d at 80).

As the Civil Court lacks jurisdiction over defendant, the amended order is reversed and defendant’s motion seeking, in effect, summary judgment dismissing the complaint is granted.

In view of some of the remarks contained in the amended order, we take this opportunity to remind the Judge that, as one commentator has noted:{**48 Misc 3d at 63}

“Judges may face a dilemma in trying to write opinions that are [*2]figurative, quotable, humorous, or unique. While they may want to forsake the wooden form of judicial opinion writing (issue, facts, law, application, conclusion), they must, in some way, maintain the dignity and integrity that, at least in part, gives the judiciary its legitimacy” (Adalberto Jordan, Imagery, Humor, and the Judicial Opinion, 41 U Miami L Rev 693, 695 n 11 [1987]).

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

Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), dated February 19, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, and plaintiff opposed the motion. Insofar as is relevant to this appeal by defendant, the District Court denied defendant’s motion and held that the only issue for trial was defendant’s defense of lack of medical necessity.

In support of its motion, defendant submitted, among other things, an affirmed medical report by the doctor who had performed the orthopedic independent medical examination (IME) on defendant’s behalf. The report set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the treatment at issue (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U] [App Term, 9th & 10th Jud Dists 2012]; Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]). In opposition to the motion, plaintiff submitted an affidavit by its principal, who did not indicate that she had examined the assignor or otherwise offer any medical evidence to rebut the conclusions set forth in the IME report. Thus, plaintiff failed to raise a triable issue of fact as to medical necessity (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff has not challenged the District Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50155[U] [App Term, 9th & 10th Jud Dists 2012]).

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.