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 (Robin Kelly Sheares, J.), entered December 21, 2011. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80.02 for date of service August 2, 2010, found for all purposes in the action that plaintiff had established its prima facie case with respect to the remaining claims and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the complaint, except for so much of the complaint as sought to recover upon plaintiff’s claim for $80.02 for date of service August 2, 2010, are granted; as so modified, the order, insofar as appealed from, is affirmed, with $25 costs to defendant.

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 granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80.02 for date of service August 2, 2010, finding that plaintiff’s prima facie showing with respect thereto was not opposed in defendant’s papers, and further found for all purposes in the action that plaintiff had established its prima facie case with respect to the remaining causes of action. The Civil Court denied defendant’s cross motion for summary judgment dismissing the complaint, but found that defendant had established that it had timely denied plaintiff’s remaining claims and that the sole issue for trial was defendant’s defense that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s owner was sufficient to establish plaintiff’s prima facie entitlement to summary judgment (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. ( ___ AD3d ___, 2013 NY Slip Op 08430 [2d Dept 2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Inasmuch as defendant raises no other issue with respect to plaintiff’s claim seeking $80.02 for services rendered on August 2, 2010, there is no basis to disturb so much of the order as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover on that claim.

With respect to plaintiff’s remaining claims, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition, plaintiff relied [*2]upon an affirmation from plaintiff’s counsel which failed to establish the existence of a triable issue of fact.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the complaint, except for so much of the complaint as sought to recover upon plaintiff’s claim for $80.02 for date of service August 2, 2010, are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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 (Robin Kelly Sheares, J.), entered December 20, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover the sum of $154.29 for the initial acupuncture visit on January 6, 2009 is granted and plaintiff’s motion is otherwise denied, and by further providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the remaining claims are granted; 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, arguing that it had properly used the workers’ compensation fee schedule applicable to chiropractors who render the same services as acupuncturists to reimburse plaintiff for the acupuncture services plaintiff had rendered. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s owner was sufficient to establish plaintiff’s prima facie entitlement to summary judgment (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Defendant did not raise any issue warranting the dismissal of plaintiff’s claim for $154.29 for the initial acupuncture visit on January 6, 2009, billed for under fee schedule treatment code 99205 (cf. Rogy Medical, P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon this claim, and which denied defendant’s cross motion insofar as it sought summary judgment dismissing that portion of the complaint. Defendant’s contention that plaintiff is barred from recovering attorney’s fees with respect thereto pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.6 (i) lacks merit.

As to plaintiff’s remaining claims, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition, plaintiff relied upon an affirmation from plaintiff’s counsel which failed to establish the existence of a triable issue of [*2]fact.

Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover the sum of $154.29 for the initial acupuncture visit on January 6, 2009 is granted and plaintiff’s motion is otherwise denied, and by further providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the remaining claims are granted; as so modified, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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 (Maureen A. Healy, J.), entered November 23, 2011. The order, insofar as appealed from, denied defendant’s motion for summary judgment, granted the branches of plaintiff’s cross motion seeking summary judgment upon the third, fourth, sixth and seventh causes of action, and found that the only triable issue of fact for trial with respect to the remaining first, second and fifth causes of action was whether defendant had timely mailed proper independent medical examination scheduling letters to plaintiff. So much of the appeal as is from the portion of the order which denied the branches of defendant’s motion seeking summary judgment dismissing the third, fourth, sixth and seventh causes of action, and granted the branches of plaintiff’s cross motion seeking summary judgment upon those causes of action, is deemed to be from a judgment of the same court entered December 23, 2011 awarding plaintiff the principal sum of $1,255.33 (see CPLR 5512 [a]).

ORDERED that the judgment is affirmed, without costs; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second and fifth causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits,
defendant appeals from so much of an order of the Civil Court entered November 23, 2011 as denied defendant’s motion for summary judgment, granted the branches of plaintiff’s cross motion seeking summary judgment upon the third, fourth, sixth and seventh causes of action, and found that the only issue of fact for trial with respect to the remaining first, second and fifth causes of action was whether defendant had timely mailed proper independent medical examination (IME) scheduling letters to plaintiff. A judgment was subsequently entered pursuant to the order, awarding plaintiff the principal sum of $1,255.33.

In support of its motion, defendant submitted an affidavit from an employee of the company that had been retained by defendant to schedule the IMEs. The affidavit established that the IME scheduling letters had been timely mailed to plaintiff’s assignor in accordance with the company’s standard office practices and procedures (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]). Contrary to the Civil Court’s order, it was not necessary to mail the scheduling letters to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b], [c] 65-3.6 [b]). Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second and fifth causes of action should have been granted (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

With respect to the claims at issue in plaintiff’s third, fourth, sixth and seventh causes [*2]action, defendant failed to show that it had denied the underlying claims or to otherwise raise a triable issue of fact. To the extent that defendant argues that it is nevertheless entitled to summary judgment upon these claims, defendant is mistaken, as defendant’s defense, based upon the assignor’s failure to appear for IMEs, is subject to preclusion if defendant failed to timely deny these claims (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009] see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011] but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). As a result, there is no basis to disturb the judgment entered upon plaintiff’s third, fourth, sixth and seventh causes action.

Accordingly, the judgment is affirmed, and the order, insofar as reviewed on direct appeal, is reversed and the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second and fifth causes of action are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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 (Genine D. Edwards, J.), entered December 15, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted only with respect to so much of the complaint as sought to recover upon the unpaid portion of the claim for dates of service August 3, 2007 through August 25, 2007; as so modified, the order is affirmed, without 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.

Contrary to plaintiff’s contention, the affidavits submitted in support of defendant’s motion for summary judgment were sufficient to establish that defendant had timely denied (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]) plaintiff’s claims either pursuant to the workers’ compensation fee schedule or on the ground of lack of medical necessity. The affidavit submitted by defendant’s employee established that, as to plaintiff’s claim for dates of service August 3, 2007 through August 25, 2007 seeking the sum of $235.90, defendant had paid $134.80 thereof and had denied the remaining $101.10 on the ground that the amount billed by plaintiff exceeded the fees allowed by the workers’ compensation fee schedule. With respect to plaintiff’s remaining claims, defendant submitted a sworn statement by the chiropractor who had performed an independent medical examination (IME), which set forth a factual basis and medical rationale for the chiropractor’s conclusion that there was a lack of medical necessity for further treatment. In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint.

In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact with regard to the unpaid portion of the claim for dates of service August 3, 2007— August 25, 2007. Thus, defendant is entitled to summary judgment with respect thereto. However, plaintiff did submit, among other things, a letter of medical necessity sworn to by plaintiff’s treating chiropractor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered (see Zuckerman v City of New York, 49 NY2d 557 [1980] Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Dists 2010]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted only with respect to so much of the complaint as sought to recover upon the unpaid portion of the claim for dates of service August 3, 2007 [*2]through August 25, 2007.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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 (William A. Viscovich, J.), entered November 17, 2011, deemed from a judgment of the same court entered December 14, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2011 order granting defendant’s 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. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

On appeal, plaintiff argues that the affidavits submitted by defendant failed to establish that defendant’s employees possessed sufficient personal knowledge to demonstrate that defendant’s denial of claim form had been timely mailed. This argument is improperly raised for the first time on appeal.

Plaintiff further argues that one of the affidavits submitted by defendant in order to prove that the denial of claim form had been timely mailed should not have been considered because it did not comply with CPLR 2309 (c). However, that argument is raised for the first time on appeal, and is therefore waived (see Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008] Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]). In any event, such defect is not fatal, as plaintiff was not prejudiced thereby (Matos v Salem Truck Leasing, 105 AD3d 916 [2013] Rivers v Birnbaum, 102 AD3d 26, 44 [2012]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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 (Reginald A. Boddie, J.), entered October 20, 2011. The order denied plaintiff’s unopposed motion for leave to enter a default judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CPLR 3215, for leave to enter a default judgment based upon defendant’s failure to appear in the action or answer the complaint. The motion was unopposed. The Civil Court denied plaintiff’s motion, finding that plaintiff had not established its prima facie case.

Plaintiff’s moving papers failed to establish either that defendant failed to pay or deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., ___ AD3d ___, 2013 NY Slip Op 08430 [2d Dept 2013]), or that defendant issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a] Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). As a result, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Terence P. Murphy, J.), entered June 1, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion to compel defendant to respond to plaintiff’s discovery demands.

ORDERED that the order is reversed, without costs, defendant’s motion for summary judgment dismissing the complaint is denied with leave to renew after the completion of discovery, plaintiff’s cross motion to compel defendant to respond to plaintiff’s discovery demands is granted, and defendant is directed to serve responses to plaintiff’s discovery demands within 60 days of the date of this decision and order.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion on the ground that defendant had failed to respond to plaintiff’s discovery demands and that defendant’s responses were necessary to oppose defendant’s motion (see CPLR 3212 [f]). Plaintiff also cross-moved to compel defendant to provide the requested discovery (see CPLR 3124). The District Court granted defendant’s motion and denied plaintiff’s cross motion.

“CPLR 3212 (f) provides, in relevant part, that a court may deny a motion for summary judgment should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated. This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion” (Jones v American Commerce Ins. Co., 92 AD3d 844, 845 [2012] [internal quotation marks and citations omitted]). Here, in support of its motion for summary judgment dismissing the complaint on the ground of lack of medical necessity, defendant alleged that it had timely denied plaintiff’s claims on that ground based on two peer review reports. In opposition to defendant’s motion, and in support of its cross motion to compel discovery, plaintiff demonstrated that it had requested from defendant, but had not received, the medical documentation underlying defendant’s decision to deny the claims based on lack of medical necessity, and that plaintiff needed such discovery to oppose defendant’s motion (see Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., ___ Misc 3d ___[A], 2013 NY Slip Op 52246[U] [App Term, 2d, 11th & 13th Jud Dists 2013] Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011] compare Elmont Open MRI & Diagnostic Radiology, P.C. v Travelers Indem. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52223[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant’s motion should have been denied with leave to renew following discovery, and plaintiff’s cross motion granted (see Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., ___ Misc 3d ___[A], 2013 NY Slip Op 52246[U]).

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing [*2]the complaint is denied with leave to renew after the completion of discovery, plaintiff’s cross motion to compel defendant to respond to plaintiff’s discovery demands is granted, and defendant is directed to serve responses to plaintiff’s discovery demands within 60 days of the date of this decision and order.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: March 10, 2014

Civil Court of the City of New York, Kings County

064253-11KI

Attorneys for Plaintiff:

The Rybak Firm, PLLC.

1506 Kings Highway, 2nd Fl

Brooklyn, NY 11229

Attorney for Defendant

Conway, Farrell, Curtin & Kelly, P.C

48 Wall Street

Woodbury, New York 10005

Katherine A. Levine, J.

Plaintiff Canarsie Chiropractic, P.C. (“plaintiff” or “Canarsie Chiropractic”), a medical services company, brings this action pursuant to Insurance Law § 5106(a) to recover monies for medical services provided to its assignor Harry Brenton (“assignor” or “Brenton”), a New York resident, for injuries he allegedly suffered in an automobile accident in New York. The car’s owner, Adama Ndiaye (“Ndiaye”), obtained the insurance policy for the car at issue, as well as for additional cars he owned in Michigan from Defendant Auto Club Insurance Association AAA Michigan (“Auto Club” or “defendant”). Per the policy, the cars were to be driven and principally garaged in that state. [*2]

After several vehicles that Ndiaye owned and insured with Auto Club were involved in auto accidents in New York between 2007 and 2009, the defendant initiated its investigation into Ndiaye’s place of residence. The investigation revealed that Ndiaye was in fact operating a commercial taxi/livery cab service in New York with the insured vehicles, in violation of the insurance policy term mandating that the vehicles be garaged in Michigan. cab service in New York and that all the vehicles were principally garaged in New York. Auto One thereupon obtained a default judgment from the Michigan Circuit Court, Auto Club Ins. Co. v Adama Ndiaye, C/A No: 10-758-CK (Hon. Timothy P. Connors) declaring the policy void ab initio and that plaintiff Auto One was “neither bound by, nor liable to [Ndiaye] or any other person or entity, whether known or unknown, under any contractual provision [of the policy].”

Auto Club moves for summary judgment on the ground that Michigan law applies, since the underlying no fault policy was procured and issued in Michigan to a Michigan resident. Plaintiff opposes the motion and argues that New York law applies since Auto One does business in New York. A conflict of law issue exists since Michigan law voids the policy ab initio when there is fraud in the procurement of the policy where as New York law does not permit an insurance policy to be cancelled retroactively. See, Mtr. of Allstate Ins. Co., (Stolarz), 81 NY2d 219 (1993); Jiminez v. Monadnock Constr., Inc., 109 AD3d 514 (2d Dept. 2012).

In Michigan, the various doctrines of fraud do not require the party asserting fraud to have investigated all assertions and representations made by its contracting partner as a prerequisite to establishing fraud. Titan Ins. Co. v. Hyten, 491 Mich. 547, 557 817 N.W.2d 562 (2012). Rather, the party asserting fraud has a plethora of legal and equitable remedies, including the right to “retroactively avoid contractual obligations through traditional remedies such as cancellation, rescission or reformation.” Id at 558. Therefore, Michigan has long held that an insurer can rescind a policy and declare it void ab initio as against an insured who seeks benefits when the insured procured the policy through fraud, even where the fraud was easily ascertainable. Titan Ins. Co. Supra, 491 Mich. At 555. See also Jackimowicz v. Citizens Ins. Co. of America, 2011 Mich. App. LEXIS 396 (Mich. Ct. App. 2011); Hammoud v. Metropolitan Property and Casualty Ins. Co., 222 Mich. App. 485, 488, 563 N.W.2d 716, 718 (1997).

In Titan, supra, the Michigan Supreme Court definitively ruled that an insurer could avail himself of these equitable principles to avoid liability under an insurance policy on the ground of fraud in the procurement notwithstanding that “the fraud might have been easily ascertainable…and the claimant was a third party.” 491 Mich. At 562. The Court reversed precedent which found that the public policy of the state recognizing the right to reimbursement under the no fault law trumped the common law which enabled insurers to obtain traditional forms of relief when they were victims of fraud and that third parties needed to protected. Id at 565- 569. Rather, “(t)hird-party victims of automobile accidents have a variety of means of recourse under the no-fault act (including tort actions), and it is to those means that such person [*3]must look.” Id at 565.

In New York, both the common law and the Insurance Law permit an insurance carrier to rescind and or void an insurance policy where a material misrepresentation was made at the time of the procurement of the policy. Stracar Medical Services v. Nationwide Mut. Ins. Co., 2013 NY Slip Op 50633(U), 39 Misc 3d 1216(A) (Civil Ct., Kings Co. 2013). See, Kiss Construction NY Inc. v. Rutgers Casualty Ins. Co., 61 AD3d 412 (1st Dept. 2009); Ins. Law §3105. However, VTL §313 (1) (a), which prohibits the termination of a contract of insurance until after the insurer mails a notice of termination to the insured, “supplants an insurance carrier’s common law right to cancel a contract of insurance retroactively on the grounds of fraud or misrepresentation and mandates that the cancellation of a contract pursuant to its provisions may only be effected prospectively.” Liberty Mut. Ins. Co. v. McClellan, 127 AD2d 767 (2d Dept. 1987). See, Mtr. Of Met Life Auto & Home v. Aguedelo, 8 AD3d 571, 572 (2d Dept. 2004). This section thus “places the burden on the insurer to discover any fraud before issuing the policy, or as soon as possible thereafter, and protects innocent third parties who may be injured due to the insured’s negligence.” Mtr. Of Ins. Co. v. Kaplan, 274 AD2d 293, 298 (2d Dept. 2000). However, only innocent third parties who are injured are protected and “not a health care provider who deals with the assignor-insured at its peril in accepting an assignment of the insured’s no-fault benefits.” Mtr of Met life, supra, 12 Misc 3d at 11-12.

The insurance carrier may assert as an affirmative defense that the insured misrepresentations and/or fraud in obtaining the policy precludes any recovery by the insured. A.B. Medical Services PLLC v. Commercial Mutual Ins. Co., 12 Misc 3d 8,11-12 (App. Term, 2d Dept. 2006). The defense of fraudulent procurement of an insurance policy is nonwaivable and hence exempt from the 30-day procurement rule, and may be asserted as against health care providers who seek to recover assigned benefits from the insured. AB Medical Services, supra, 12 Misc 3d at 11-12. The insurance company may also bring an action against its insured to recover any losses it incurred by paying benefits under the policy to the innocent third party. Mtr. Of Ins. Co. v. Kaplan, 274 AD2d 293, 298 (2d Dept. 2000).

Here, the assignor was an innocent third party as he was a passenger in a livery car owned by the insured and played no role in the insured’s fraudulent misrepresentation. Therefore, plaintiff health care provider, which stepped into the shoes of the assignor, is an innocent third party in the instant matter.

Traditionally, conflict of law questions relating to contracts were resolved by application of the law of the jurisdiction where the contract was made or was to be performed.” Mtr. of Eagle Ins. Co v. Singletary, 279 AD2d 56, 59 (2nd Dept. 2000). New York has long recognized the use of center of gravity or groupings of contacts as the appropriate analytical approach to choice of law questions in contract cases. Mtr of Midland Ins. Co., 16 NY3d 536 (2011) citing Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 317, 319 (1994). This grouping of [*4]contacts approach establishes which State has the most significant relationship to the transaction and the parties, and allows that state “paramount control over the legal issues arising out of a particular factual context.” Mtr of Midland Ins. Co., supra, 16 NY3d at 543; Jiminez v. Monadnock Constr. Inc., 109 AD3d 514, 516 (2d Dept. 2013). Significant contacts include the place of contracting, negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties. Mtr. of Allstate Ins. Co. supra, 81 NY2d at 227; Jiminez, supra at 516; Mtr. Of Eagle Ins. Co. v. Singletary, 279 AD2d 56, 58-59 (2nd Dept. 2000).

In the context of liability insurance contracts, the courts look to the law of the state which the parties understood was to be the principal location of the insured risk. Mtr of Midland Ins. Co. supra 16 N.Y.3rdat 544; Eagle v. Singletary, supra, 279 AD3d at 59; Conflict of Laws § 193. The principle location of the insured risk will be deemed to be the state where the insured is incorporated, domiciled and has its principal place of business. Midland, supra, 16 NY2d at 544. In the case of a noncommercial vehicle insurance, the principal location of the insured risk is the place where the vehicle is to be principally garaged. Eagle Ins. Co., supra, at 57 citing Restatement [Second] of Conflict of Laws, § 193, comment c.

Applying this analytical framework to the facts, Michigan clearly had the most significant contacts. Defendant’s casualty claims representative averred that at the time Ndiaye procured the policy, he provided a Michigan address and stated that the four vehicles registered on his policy were to be garaged in that State. The subject insurance policy was negotiated in and issued to Ndiaye in Michigan and incorporated Michigan law. See, GEICO v. Nichols, 8 AD3d 564 (2d Dept. 2004) (retroactive cancellation of policy under Florida law permitted where the policy was issued in Florida to Florida residents for a vehicle registered in Florida and policy incorporated Florida law; the only connection to New York was that insured was driving car in NY at time of accident); Mtr of Eagle Ins. Co supra (retroactive cancellation of policy under Virginia law for fraudulent misrepresentation permitted where the policy was issued in Virginia to a Virginia resident for a vehicle garaged in Virginia, and the only connection to New York was that the accident occurred in NY and the injured passenger was a NY resident); Careplus Medical Supply Inc v. Selective Insurance Co of America, 25 Misc 3d 48 (App Term, 2d Dept. 2009) (New Jersey law governs where the policy was negotiated and entered into in New Jersey, the insureds lived in New Jersey, and the vehicle was garaged and registered in New Jersey; the only connection to New York was that the accident occurred there); R.E.G Flushing Medical v. Integon Nat. Ins. Co., 2011 NY Slip Op 50975(U), 31 Misc 3d 1234(A) (Dist. Ct., Nass. Co. 2011) (North Carolina law applies where policy was issued to insured in North Carolina, the policy listed a North Carolina address for the insured and the insured certified that his cars were garaged at the address listed).

Applying Michigan law, it is clear that the defendant properly cancelled the policy at issue because of fraud in its procurement. Plaintiff argues that even if Michigan Law applies, the [*5]motion cannot be granted because its out of state affidavit lacks a certificate of conformity required by RPL 299-a (1). This section mandates that an affidavit signed outside of the state by a foreign notary be accompanied by a certificate of conformity certifying that the manner in which the acknowledgment was taken conforms with New York law or other place where the acknowledgment was taken. The certificate must be made by an attorney admitted to practice in New York State who resides in the other jurisdiction, or by an attorney admitted to practice in the other jurisdiction, or any other person deemed qualified by any court of the State of New York. RPL ｧ 299-a (1).

Here, the Michigan notary of the public who notarized defendant’s affidavit does not fall within any of the categories allowed by RPL 299-a (1). Nevertheless, the absence of a valid certificate of conformity for an out-of-state affidavit is not a fatal defect and can be cured nunc pro tunc. Fredette v Town of Southampton, 95 AD3d 940, 941 (2nd Dept. 2012); Art of Healing Medicine, P.C. v. Amica Mutual Ins. Co., 2013 NY Slip Op 52014(U), 41 Misc 3d 141(A) (App. Term, 2nd Dept. 2013). Accordingly, the defendant is given 45 days from receipt of this decision to provide a certificate of conformity to this Court and the other side. Upon receipt of proper certificate, this Court will grant the motion for summary judgment and dismiss the case.

This constitutes the Decision and Order of the Court.

DATED: March 10, 2014

_____________________________

KATHERINE A. LEVINE

Acting Justice, Supreme Court

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, March 5, 2014

APPEARANCES OF COUNSEL

Law Office of Jeff Henle, P.C., New York City (Jeff Henley of counsel), for appellant.

Jaffe & Koumourdas, LLP, New York City (Jean H. Kang of counsel), for respondent.

Ordered that, on the court’s own motion, the notice of appeal from the amended decision dated September 15, 2010 is deemed a premature notice of appeal from so much of the judgment entered January 26, 2012 as awarded statutory prejudgment interest from August 7, 2008 (see CPLR 5520 [c]); and it is further ordered that the judgment, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in 2001, based upon an accident that had occurred in 1998. It is undisputed that for the next seven years, no action was taken by either party. On August 7, 2008, plaintiff filed a notice of trial. A nonjury trial was subsequently held, after which the Civil Court found in favor of plaintiff. However,{**43 Misc 3d at 89} based on plaintiff’s delay of the case, the Civil Court held that statutory prejudgment interest would accumulate from the date plaintiff filed his notice of trial, on August 7, 2008. Plaintiff filed a notice of appeal from that decision, limited to the Civil Court’s decision to award interest from August 7, 2008. A judgment was subsequently entered, including interest commencing as of August 7, 2008 at a simple, not compound, rate. We deem the appeal to have been taken from so much of the judgment as awarded interest from August 7, 2008.

[1] First, contrary to plaintiff’s argument on appeal, defendant did prove the timely mailing of the denial. Where, as here, a provider does not commence the action within 30 days of receipt of the denial, the Insurance Department Regulations provide that statutory prejudgment interest (see Insurance Law § 5106 [a]) begins to accumulate when the action is commenced (see Insurance Department Regulations [11 NYCRR] § 65-3.9 [c]), “unless the applicant unreasonably delays the . . . court proceeding” (Insurance Department Regulations [11 NYCRR] § 65-3.9 [d] [emphasis added]). In this case, plaintiff took no action for seven years. Plaintiff’s argument that defendant should be required to pay interest for that period because defendant could have attempted to move the case forward lacks merit. It is plaintiff who brought this action and plaintiff should not be rewarded for his years of inaction by receiving a windfall of interest (see Arzu v NYC Tr. Auth., 35 Misc 3d 210 [Civ Ct, Kings County 2012]; compare Igor Shtarkman Neurologist, P.C. v Allstate Ins. Co., 191 Misc 2d 76 [Nassau Dist Ct 2002]). Thus, in our opinion, the Civil Court properly held that the interest in this case should be awarded from August 7, 2008.

[2] On appeal, plaintiff also contends that interest should have been calculated at a compound, not simple, rate. However, the decision from which plaintiff appealed did not specify whether the interest awarded should be simple or compound, and the award of simple, rather than compound, interest is found only in the judgment, which was entered subsequent to the filing of the notice of appeal. Moreover, the notice of appeal limited the appeal to the court’s determination regarding the date on which interest would begin to accumulate. Therefore, the issue of whether the interest should be calculated at a simple or compound rate is not reviewable on this appeal. As this issue was not litigated below and as there has been no prior judicial determination of this question, plaintiff, if he be so advised, may move, pursuant to CPLR 5019 (a), to seek a correction of{**43 Misc 3d at 90} the interest in the judgment (see Kiker v Nassau County, 85 NY2d 879, 881 [1995]; see also former Insurance Department Regulations [11 NYCRR] § 65.15 [h] [1]; Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; Ops Gen Counsel NY Ins Dept No. 02-10-22 [Oct. 2002]).

Accordingly, the judgment, insofar as appealed from, is affirmed.

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

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 (Richard G. Latin, J.), entered September 14, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is granted, defendant’s motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

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 misrepresenting the state in which the vehicle at issue was garaged. Plaintiff separately moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s motion.

The record indicates that plaintiff established its prima facie entitlement to summary judgment (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010] Ave T MPC Corp v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and that defendant failed to demonstrate that it had timely denied plaintiff’s claim. With respect to defendant’s motion for summary judgment, although defendant contends that, in connection with the issuance of the insurance policy at issue, plaintiff’s assignor had misrepresented the state where the insured vehicle was garaged, defendant is precluded from asserting that defense in support of its motion and in opposition to plaintiff’s motion as it failed to establish that it had timely denied plaintiff’s claim on that ground (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011] cf. Central Radiology Servs., P.C. v Commerce Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50948[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is reversed, plaintiff’s motion is granted, defendant’s motion is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder. [*2]

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014