Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 7, 2013. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs, and, upon searching the record, defendant is awarded summary judgment dismissing the complaint.

Plaintiff commenced this action in the Civil Court to recover assigned first-party no-fault benefits, asserting that it had provided health care services to Kashif Edwards for injuries sustained in an April 26, 2010 automobile accident, and that Edwards had assigned his benefits to plaintiff. Shortly thereafter, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against plaintiff, other providers and Kashif Edwards, seeking a declaration that all of the defendants therein were not entitled to no-fault benefits as a result of the April 26, 2010 accident involving Edwards on the ground that Edwards had failed to comply with the terms of the applicable insurance policy by failing to appear for scheduled independent medical examinations. Neither plaintiff nor Edwards served an answer or otherwise appeared in the Supreme Court action. Approximately one year later, plaintiff, LMS Acupuncture, P.C., moved for summary judgment in the Civil Court. American Transit opposed the motion on the ground that LMS Acupuncture, P.C.’s Civil Court action was barred by the pending declaratory judgment action. While the Civil Court action was pending, American Transit moved in Supreme Court for, among other relief, a declaration that Kashif Edwards is not an eligible injured person entitled to no-fault benefits under the insurance policy at issue and that American Transit is not obligated to honor or pay claims submitted by Edwards’ assignees, including LMS Acupuncture, P.C., arising from the subject accident, under the insurance policy at issue. On May 8, 2013, the Supreme Court granted, on default, American Transit’s motion. By order entered June 7, 2013, the Civil Court denied LMS Acupuncture, P.C.’s motion for summary judgment, in light of the Supreme Court’s determination in the declaratory judgment action. On August 1, 2013, the Supreme Court signed a long-form order embodying its determination.

Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior action (see Abraham v Hermitage Ins. Co., 47 AD3d 855 [2008]). “The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again” (Matter of Hunter, 4 NY3d 260, 269 [2005]).

Based upon the declaratory judgment action in Supreme Court, the instant action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. [*2]Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), since the prior action was disposed of on the merits (see Abraham, 47 AD3d 855; Ava Acupuncture, P.C., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]), and the Supreme Court’s order is a conclusive final determination (see Sabatino v Capco Trading, Inc., 27 AD3d 1019 [2006]). To hold otherwise could result in a judgment in the present action which would destroy or impair rights or interests established in the Supreme Court action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; EBM Med. Health Care, P.C., 38 Misc 3d 1). We note that any contention that the Supreme Court’s May 8, 2013 determination was not a final disposition has been rendered moot by the entry of the August 1, 2013 long-form order.

Although defendant did not cross-move for summary judgment dismissing the complaint, upon a search of the record, we find that it supports the granting of such relief as a matter of law (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]).

Accordingly, the order of the Civil Court is affirmed, and, upon searching the record, defendant is awarded summary judgment dismissing the complaint.

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

[*1]

Buckley Law Group, P.A., New York (Erdal Turnacioglu of counsel), for appellant.

Boeggeman George & Corde, P.C., White Plains (Richard G. Corde of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 12, 2013, which denied plaintiff’s motion for summary judgment on its claim for defense costs expended in the underlying personal injury action, and granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The underlying personal injury action was discontinued by stipulation, to which plaintiff’s insured was a signatory, agreeing that all cross claims between the defendants in that action were “discontinued and waived.” The stipulation contained no reservation of any insurer’s subrogation rights (see Weinberg v Transamerica Ins. Co., 62 NY2d 379, 381-382 [1984]; Ziegler v Raskin, 100 AD2d 814 [1st Dept 1984], appeal dismissed 65 NY2d 925 [1985]). Thus, plaintiff, as subrogee of its insured, standing in its insured’s shoes and having no greater rights than its insured has, may not assert a subrogation claim against defendant (see Progressive Ins. Co. v Sheri Torah, Inc., 44 AD3d 837, 838 [2d Dept 2007]).

Plaintiff’s claim is also time-barred, because plaintiff is seeking common-law subrogation relief, and the statute of limitations on the underlying personal injury cause of action (three years) commenced to run as of the date of the accident (see General Construction Law § 20; Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 43 [1995]; CPLR 214 [5]; cf. Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 221 [1996] [subrogation rights created by no-fault statute commenced on date benefits were paid]).

Although defendant informed plaintiff six months before the limitations period expired that the lessee had failed to name plaintiff’s insured as an additional insured on his personal automobile insurance policy and that plaintiff’s insured was afforded coverage under the policy as a loss payee only, plaintiff did not assert a breach of contract claim against the lessee, or bring a declaratory judgment action against defendant or a subrogation action until well after the time to do so had expired (see Allstate Ins. Co. v Stein, 1 NY3d 416, 423 [2004]).

Thus, even if plaintiff were, as it contends, an additional insured solely by operation of [*2]the terms of the policy issued by defendant, and without reference to the terms of the lease, it could not assert a subrogation claim because its time to do so has expired. Concur—Friedman, J.P., Sweeny, Andrias, Moskowitz and DeGrasse, JJ.

[*1]

Second Department, February 18, 2015

Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 2013 NY Slip Op 33849(U), reversed.

APPEARANCES OF COUNSEL

Melito & Adolfsen, P.C., New York City (Louis G. Adolfsen and S. Dwight Stephens of counsel), for appellants.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP, New York City (John Belesi and David Verschell of counsel), for respondent.

Greenberg Traurig, LLP, New York City (Francis J. Serbaroli of counsel), for amicus curiae New York State Association of Ambulatory Surgery Centers, Inc.

This appeal presents an issue of first impression, namely, whether a no-fault insurer must pay, as a component of first-party benefits for “basic economic loss” (Insurance Law § 5102 [a]), a facility fee in connection with “office-based surgery” performed in a practice and setting accredited under Public Health Law § 230-d (1) (h). A facility fee is a charge for the use of a medical facility and its staff and equipment. It is separate from the fee to which a physician or other medical professional is entitled for performance of the medical procedure itself.

The No-Fault Law (Insurance Law art 51) and its implementing regulations specifically provide that the operator of a hospital or “ambulatory surgery center,” both of which are established under, and subject to, the comprehensive statutory and regulatory framework of Public Health Law article 28, may properly bill a no-fault carrier for facility fees (see e.g. 10 NYCRR 86-4.40). There is, however, no provision for recovery of a facility fee for the performance of an “office-based surgery” performed in a practice and setting accredited under Public Health Law § 230-d (Public Health Law § 230-d [1] [b]). Public Health Law § 230-d, which is not contained in Public Health{**127 AD3d at 62} Law article 28, imposes a substantially more modest level of oversight and regulation than article 28. We hold that, absent express statutory or regulatory authorization, a no-fault insurer is not required to pay a facility fee for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d.

Mark Gladstein, an anesthesiologist, performs “office-based surgery” (Public Health Law § 230-d [1] [h]) at an office in Brooklyn owned by the defendant, Avanguard Medical Group, [*2]PLLC.^[FN1] Dr. Gladstein is an owner of Avanguard. It is not in dispute on this appeal that Dr. Gladstein’s medical practice is accredited under Public Health Law § 230-d for the performance of office-based surgery (see Public Health Law § 230-d [2]). It is also not in dispute that Avanguard’s Brooklyn office is accredited as a setting for office-based surgery (see Public Health Law § 230-d [3]).

Dr. Gladstein bills for his performance of office-based surgery through a professional corporation, Metropolitan Medical and Surgical, P.C. Separate and apart from that billing, Avanguard seeks to collect a facility fee from no-fault insurers for the use of its Brooklyn office where the office-based surgery is performed. The facility fee is a charge for the cost of providing “technicians, medical assistant[s] . . . [and] equipment,” such as X ray and ultrasound equipment, for office-based surgery.

In 2011, the plaintiffs—Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Co., and GEICO Casualty Co. (hereinafter collectively GEICO)—commenced this action against Avanguard seeking a judgment declaring, in essence, that GEICO is not required under the No-Fault Law and regulations to pay a facility fee for office-based surgery performed at Avanguard’s office. Avanguard had named GEICO as a defendant in numerous actions and arbitrations in which Avanguard sought to collect facility fees after GEICO refused to pay such fees. In 2012, GEICO moved in this action for a stay of numerous related district court and civil court actions and arbitrations, and for a preliminary{**127 AD3d at 63} injunction against the commencement of new actions and arbitrations, pending the determination of this action. The Supreme Court denied GEICO’s motion (2012 NY Slip Op 31516[U] [2012]), and GEICO appealed from that determination (see Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 125 AD3d 803 [2d Dept 2015, No. 2012-06819] [decided herewith]). GEICO subsequently moved for summary judgment declaring that it is not required to pay facility fees for office-based surgery. In the order appealed from, the Supreme Court denied GEICO’s motion, in large part on the ground that its denial of the motion for a stay and preliminary injunction was, in effect, the law of the case (2013 NY Slip Op 33849[U] [2013]).

To determine whether a fee for the use of medical facilities may be reimbursed as a component of “basic economic loss,” we need to examine the meaning of “basic economic loss.” Under the No-Fault Law (Insurance Law § 5101 et seq.), an insurer must pay first-party benefits of up to $50,000 per person to reimburse a person for covered “basic economic loss” (Insurance Law § 5102 [a]), subject to the limitations of Insurance Law § 5108. One of the components of basic economic loss is, as relevant here, “[a]ll necessary expenses incurred for . . . medical, hospital . . . , surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services . . . and . . . any other professional health services” (Insurance Law § 5102[a] [1]).^[FN2]

Insurance Law § 5108 provides, with some exceptions, that charges for services covered under Insurance Law § 5102 “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents” (Insurance Law § 5108 [a]).^[FN3] Where workers’ compensation schedules have not been prepared for certain services covered under Insurance Law § 5102, Insurance Law § 5108 requires that the Superintendent of Financial Services establish schedules after consulting with the [*3]Chairperson of the Workers’ Compensation Board and the Commissioner of Health (see Insurance Law § 5108 [b]). The implementing and coordinating regulations of the{**127 AD3d at 64} Department of Financial Services^[FN4] 11 NYCRR 65-3.16 (regulation No. 68-C, “Measurement of no-fault benefits”)—refer, in turn, to “Regulation [No.] 83.” Regulation No. 83 (11 NYCRR 68.0) adopts the workers’ compensation schedules that were already in existence (see 11 NYCRR 68.1 [“Adoption of certain workers’ compensation schedules”]; 12 NYCRR 329.3 [“Medical fee schedule; incorporation by reference”]), and establishes schedules for services not already contained in workers’ compensation schedules (11 NYCRR 68.2 [“Establishment of certain health provider schedules”]).

The fee schedules do not provide for facility fees for office-based surgery performed in a practice and a setting accredited under Public Health Law § 230-d. Nonetheless, Avanguard contends that facility fees are included within the Insurance Law § 5102 definition of “basic economic loss” because they are a “necessary expense[ ] incurred for . . . medical, . . . surgical [and] nursing . . . services” (Insurance Law § 5102 [a] [1]). Further, Avanguard points out that regulation No. 83 includes a default provision in recognition that not all covered services will be contained in the applicable fee schedules. This provision—11 NYCRR 68.5 (“Health services not set forth in schedules”)—provides a mechanism for determination of appropriate fees for those services that are included within the definition of “basic economic loss” but are not contained in a schedule. Avanguard contends that, under this “default” regulation, it is entitled to a facility fee and that this fee is the same fee provided to ambulatory surgical centers under article 28 of the Public Health Law.

Avanguard’s contention is untenable. First, Avanguard fails to take into account that the definition in Insurance Law § 5102 of “basic economic loss” expressly incorporates the limitations imposed by Insurance Law § 5108. As previously discussed, Insurance Law § 5108 provides that, with only limited exceptions, charges shall not exceed the amounts set forth in the workers’ compensation schedules. Accordingly, the determination of what is a necessary expense must take Insurance Law § 5108 into account. There is no provision in the workers’ compensation schedules expressly providing for payment of facility fees for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d. The {**127 AD3d at 65}absence of such a provision supports GEICO’s argument that a facility fee is not a necessary expense for medical services performed by a practice and in a facility accredited under Public Health Law § 230-d.

Moreover, the default provision upon which Avanguard relies is inapplicable, by its own terms. That provision, contained in 11 NYCRR 68.5, provides a mechanism for setting a fee for necessary services for which no fee schedule is specifically set forth in the workers’ compensation fee schedules. It says:

“Section 68.5. Health services not set forth in schedules

“If a professional health service is performed which is reimbursable under section 5102(a)(1) of the Insurance Law, but is not set forth in fee schedules adopted or established by the superintendent, and:

“(a) if the superintendent has adopted or established a fee schedule applicable to the provider, then the provider shall establish a fee or unit value consistent with other fees or unit values for comparable procedures shown in such schedule, subject to review by the insurer; or

“(b) if the superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5 [emphasis added]).

Under this regulation, a provider may be entitled to reimbursement in situations when there is no fee schedule for a particular service. Avanguard cannot accurately assert that there is no existing fee schedule that determines the amount of a facility fee. Indeed, it is undisputed that Avanguard has consistently billed GEICO for facility fees based on the existing fee schedule and “PAS” codes that are applicable to Public Health Law article 28 ambulatory surgical centers (see 10 NYCRR 86-4.1, 86-4.40). Accordingly, there is indeed a fee schedule for facility fees. That schedule, however, is not applicable to Avanguard. Thus, a prerequisite to application of the default provision is absent.{**127 AD3d at 66}

The conclusion that the default provision is inapplicable makes sense in light of its purpose. The default provision relates to particular procedures that do not appear on any existing fee schedule (see 11 NYCRR 68.5 [a], [b]). A facility fee is not a fee for a particular medical procedure, but a blanket charge added to the billing for all procedures. In other words, Avanguard contends that, under the default regulation, an entire category of fees should be deemed compensable. We reject such a broad interpretation of the default provision, because the obvious intent of the default provision is to fill in discrete gaps in the schedules, not to make an entirely new category of “service” compensable (11 NYCRR 68.5).

We decline to read the default provision so broadly for another reason. We glean no legislative intent to require payment of facility fees, which are part of the comprehensive statutory and regulatory framework under Public Health Law article 28 pertaining to specific types of medical facilities, to practices and settings entirely separate from Public Health Law article 28. Article 28 facilities are subject to detailed and extensive requirements governing the establishment, licensing, and operation of facilities (see e.g. 10 NYCRR 400.18, 709.5; part 755). Avanguard is not an article 28 facility.

Avanguard’s remaining contention does not require extensive discussion. Avanguard contends that, in 2007, the legislature created a new class of medical facility, an “office based surgical facility,” when it enacted Public Health Law § 230-d (see L 2007, ch 365, § 2). Further, it asserts that its accreditation under Public Health Law § 230-d entitles it to a facility fee. As we have already discussed, however, only article 28 facilities are entitled to a facility fee under the existing no-fault laws and regulations. Thus, we need not decide whether the legislature created a new class of medical facility under Public Health Law § 230-d when it required accreditation of practices and settings in which office-based surgery is performed. Further, it would be improper for us, on our own, to determine that a facility such as Avanguard is entitled to a benefit of Public Health Law article 28 when it is not subject to the significant regulatory burdens and costs of that article. Instead, it is for the legislature and the Superintendent of Financial Services to determine whether the laws and regulations should be{**127 AD3d at 67} changed to entitle an accredited Public Health Law § 230-d facility to a facility fee.^[FN5]

Inasmuch as GEICO established on its motion for summary judgment, prima facie, that it is not required to reimburse Avanguard for facility fees, and Avanguard did not raise a triable issue of fact in opposition, GEICO’s motion should have been granted.

Accordingly, the order is reversed, on the law, GEICO’s motion for summary judgment declaring that it is not required to reimburse the defendant for facility fees as payable first-party benefits under Insurance Law § 5102 is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that GEICO is not required to reimburse Avanguard for facility fees as payable first-party benefits under Insurance Law § 5102.

Dickerson, Leventhal and Roman, JJ., concur.

Ordered that the order is reversed, on the law, with costs, the plaintiffs’ motion for summary judgment declaring that they are not required to reimburse the defendant for facility fees as payable first-party benefits under Insurance Law § 5102 is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiffs are not required to reimburse the defendant for facility fees as payable first-party benefits under [*5]Insurance Law § 5102.

Footnotes

Footnote 1:Under Public Health Law § 230-d (1) (h),

“ ’Office-based surgery’ means any surgical or other invasive procedure, requiring general anesthesia, moderate sedation, or deep sedation, and any liposuction procedure, where such surgical or other invasive procedure or liposuction is performed by a licensee in a location other than a hospital, as such term is defined in article twenty-eight of this chapter, excluding minor procedures and procedures requiring minimal sedation.”

Footnote 2:Insurance Law § 5102 (a) (1) also encompasses psychiatric treatment, physical therapy, and occupational therapy and rehabilitation, as well as certain nonmedical remedial care and treatment in accordance with religious methods of healing (see Insurance Law § 5102 [a] [1] [ii], [iii]).

Footnote 3:The workers’ compensation schedules are referred to in the regulations of the Commissioner of Labor and incorporated into that regulation by reference (see 12 NYCRR 329.3).

Footnote 4:In 2011, the Insurance Department and the Banking Department merged into the newly created “Department of Financial Services” (see L 2011, ch 62, § 1, part A, §§ 1, 13, 104 [d]).

Footnote 5:The Office of General Counsel of the Department of Financial Services has opined that the Insurance Law does not require an insurer to pay a facility fee for surgery performed in a physician’s office (see Ops Gen Counsel NY Ins Dept No. 08-10-06 [Oct. 2008]).

[*1]

Peter C. Merani, P.C., New York, N.Y. (Mark J. Fenelon and Eric Wahrburg of counsel), for appellant.

Subin Associates, LLP, New York, N.Y. (Gregory T. Cerchione and Asya Domashitsky of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated July 23, 2012, confirming an award of an arbitrator dated April 5, 2012, the petitioner appeals from an order of the Supreme Court, Nassau County (Phelan, J.), entered March 18, 2013, which denied the petition and confirmed the master arbitrator’s award.

Ordered that the order is affirmed, with costs.

In this case, the nonparty, Carmen Carvajal, allegedly was injured in a motor vehicle accident on February 22, 2011, and thereafter sought treatment from the Westchester Medical Group, incorrectly named herein as Westchester Medical Group, M.D. (hereinafter Westchester). As assignee of Carvajal, Westchester sought from her insurance carrier, the petitioner Allstate Insurance Company (hereinafter Allstate), no-fault benefits in the sum of $352.81 for medical services rendered to Carvajal. However, Allstate maintained that it had no duty to pay this sum since its request to Westchester for “additional verification” allegedly remained outstanding (see 11 NYCRR 65-3.5 [f]). In an award dated April 25, 2012, the arbitrator concluded that Westchester did in fact comply with the requests for additional verification, and that Allstate “did not appear to be acting in good faith.” That award was confirmed in an award issued by a master arbitrator on July 23, 2012. The Supreme Court denied Allstate’s petition to vacate the master arbitrator’s award and confirmed the award. We affirm.

“Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied” (Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017 [2009]; see Matter of Green v Liberty Mut. Ins. Co., 22 AD3d 755, 755-756 [2005]; Matter of Domotor v State Farm Mut. Ins. Co., 9 AD3d 367 [2004]). Here, Allstate failed to demonstrate the existence of any of the statutory grounds for vacating the master arbitrator’s award. In addition, the determination of the master arbitrator confirming the original arbitration award had evidentiary support and a rational basis (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231-232 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 [*2]NY2d 207, 211 [1981]; Matter of Fireman’s Fund Ins. Co. v Allstate Ins. Co., 46 AD3d 560, 561 [2007]). “It is not for [the court] to decide whether [the master] arbitrator erred [in applying the applicable law]” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 535 [2010]). Accordingly, the Supreme Court properly denied the petition and confirmed the award. Mastro, J.P., Roman, Sgroi and Barros, JJ., concur.

[*1]

Law Offices of John Cucci, Jr., Patchogue, N.Y., for appellant.

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for respondent.

In an action, inter alia, to recover no-fault benefits under a policy of automobile insurance, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated September 5, 2013, which denied her motion for summary judgment on the complaint and granted that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff, who had been a passenger in her husband’s vehicle, fell while exiting the vehicle after her husband had parked the vehicle on the street in front of their home. She allegedly injured her knee as a result of the fall. The plaintiff submitted an application for no-fault benefits to the defendant under the automobile insurance policy issued to the plaintiff and her husband. The defendant denied her claim on the ground that the injury did not arise out of the use or operation of a motor vehicle.

The plaintiff commenced this action against the defendant to recover, inter alia, no-fault benefits under the subject insurance policy. The plaintiff moved for summary judgment on the complaint. The defendant cross-moved for summary judgment dismissing the complaint, or, in the alternative, to dismiss the second, third, and fourth causes of action. The Supreme Court denied the plaintiff’s motion and granted that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint.

Section 5103 of the Insurance Law, part of the “Comprehensive Motor Vehicle Insurance Reparations Act,” which pertains to the entitlement to first-party benefits, provides, in relevant part, that a person is entitled to first-party benefits from the insurer of a vehicle “for loss arising out of the use or operation . . . of such motor vehicle” (Insurance Law § 5103 [a] [1]). Where a plaintiff’s injuries from an accident were produced other than as a result of the use or operation of the vehicle itself, no-fault first-party benefits are not available (see Cividanes v City of New York, 20 NY3d 925, 926 [2012]; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996]). “Any other rule would permit recovery for claims based on back strains, slip-and-fall injuries, and other similar injuries occurring while the vehicle is being used but which are wholly unrelated to its use” (Walton [*2]v Lumbermens Mut. Cas. Co., 88 NY2d at 215).

Here, the plaintiff failed to establish her prima facie entitlement to judgment on the complaint as a matter of law (see id. at 216; see also Cividanes v City of New York, 20 NY3d at 926). The plaintiff testified at her examination under oath, the transcript of which she submitted in support of her motion, that she simply fell while exiting the subject vehicle and that her knee “gave way.” Moreover, the plaintiff’s affidavit similarly indicated that she just fell without attributing her accident to the use or operation of the subject vehicle.

The defendant, however, established, prima facie, that the plaintiff’s alleged injuries did not arise from the use or operation of a vehicle (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d at 216; Hammond v GMAC Ins. Group, 56 AD3d 882, 883 [2008]; Santo v Government Empls. Ins. Co., 31 AD3d 525, 526 [2006]; Sullivan v Barry Scott Agency, Inc., 23 AD3d 889, 890 [2005]; see also Cividanes v City of New York, 20 NY3d at 926). In support of its cross motion, in addition to the transcript of the plaintiff’s examination under oath, the defendant submitted the plaintiff’s application for no-fault benefits and her signed statement concerning the circumstances of the accident, in which she consistently described the accident as occurring when her right knee “buckled” while she was getting out of the car, causing her to fall to the ground. In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the complaint and properly granted that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint. Skelos, J.P., Austin, Roman and LaSalle, JJ., concur.

Decided on January 15, 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 (Harriet L. Thompson, J.), entered March 13, 2013, deemed from a judgment of the same court entered March 27, 2013 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 13, 2013 order granting defendant’s motion for summary judgment and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment 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 and denied plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its motion, defendant submitted an affidavit by its claims representative, which affidavit sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Although the claims representative’s affidavit, which was notarized outside the State of New York, failed to conform to the requirements set forth in CPLR 2309 (c) and Real Property Law § 299-a regarding the submission of a certificate of conformity, the absence of a certificate of conformity is not a fatal defect (see Fuller v Nesbitt, 116 AD3d 999 [2014]; Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), as the defect may be disregarded pursuant to CPLR 2001 where a substantial right of a party is not prejudiced (see Midfirst Bank v Agho, 121 AD3d 343 [2014]; Rivers v Birnbaum, 102 AD3d 26 [2012]). In the present case, plaintiff failed to make any showing of prejudice.

Defendant denied plaintiff’s claims on the grounds that they exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid for the billed-for services in accordance with the fee schedule for acupuncture services performed by chiropractors. Contrary to plaintiff’s assertion, the affidavit executed by a fee schedule adjuster [*2]for defendant’s vendor, Managed Care Network, established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services at issue (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff’s papers failed to raise a triable issue of fact in opposition to defendant’s motion. Consequently, the Civil Court properly granted defendant’s motion and denied plaintiff’s cross motion.

Accordingly, the judgment is affirmed.

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

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), dated May 22, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Andrea Masley, J.), dated May 22, 2013, insofar as appealed from, modified by granting defendant’s motion for summary judgment dismissing plaintiff’s claims seeking no-fault first-party benefits in the aggregate amount of $1,710.05; as modified, order affirmed, with $10 costs to defendant-appellant.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claims in the total sum of $ 1,710.75, for medical supplies provided to plaintiff’s assignor on June 2, 2011 and June 22, 2011, by establishing its proper and timely mailing of the denial of claim forms at issue herein (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2d Dept 2008]), and submitting a sworn peer review report which set forth a sufficient factual basis and medical rationale for the stated conclusion that the medical supplies provided to the assignor were not medically necessary (see Triangle R. Inc. v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 143[A], 2011 NY Slip Op 51663[U] [App Term, 1st Dept 2011]). Plaintiff’s opposing submission, consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). Plaintiff’s objections to the peer review doctor’s qualifications “go to the weight and not the admissibility of her opinion” (Solano v Ronak Med. Care, 114 AD3d 592 [2014]).

We sustain so much of the order under review as denied defendant’s motion for summary judgement dismissing plaintiff’s claim of $1,080 for medical supplies provided to plaintiff’s assignor on June 27, 2011, since defendant’s own moving papers tend to indicate that this claim was not timely denied (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d [*2]312, 317 [2007]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zabloski, 257 AD2d 506 [1990]).

Plaintiff’s remaining arguments are either unpreserved for appellate review or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on December 31, 2014

Decided on December 30, 2014