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 (Pamela L. Fisher, J.), entered February 25, 2010, deemed from a judgment of the same court entered December 7, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 25, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’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 denied plaintiff’s motion for summary judgment and granted defendant’s cross 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]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely mailed (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]) the denial of claim forms at issue, which denied the claims on the ground of lack of medical necessity. Moreover, defendant annexed to its motion papers an affirmed independent medical examination (IME) report which set forth a factual basis and medical rationale for the determination by defendant’s chiropractor that there was a lack of medical necessity for the services rendered (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In opposition to defendant’s cross motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not submit an affirmation or an affidavit from a medical professional rebutting the conclusions set forth in the IME report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th [*2]& 13th Jud Dists 2009]; 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]). Consequently, the Civil Court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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 (Pamela L. Fisher, J.), entered February 25, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal from the order is deemed to be from a judgment of the same court entered December 7, 2010 dismissing the complaint (see CPLR 5501 [c]).

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, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross 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]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely mailed (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]) the denial of claim forms at issue, which denied the claims on the ground of lack of medical necessity. Moreover, defendant annexed to its motion papers an affirmed independent medical examination (IME) report which set forth a factual basis and medical rationale for the determination by defendant’s chiropractor that there was a lack of medical necessity for the services rendered (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In opposition to defendant’s cross motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not submit an affirmation or an affidavit from a medical professional rebutting the conclusions set forth in the IME report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 [*2]NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, the Civil Court properly granted defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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 (Dawn Jimenez Salta, J.), entered March 11, 2010, deemed from a judgment of the same court entered July 20, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 11, 2010 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]).

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely mailed (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]) the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. Moreover, defendant annexed to its motion papers an affirmed independent medical examination (IME) report which set forth a factual basis and medical rationale for the determination by defendant’s chiropractor that there was a lack of medical necessity for the supplies provided (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In opposition to defendant’s motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not submit an affirmation or an affidavit from a medical professional rebutting the conclusions set forth in the IME report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]). Plaintiff’s remaining [*2]contentions either lack merit or are improperly raised for the first time on appeal. Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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 (Margaret A. Pui Yee Chan, J.), entered June 15, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered September 21, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated, and defendant’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely mailed (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]) the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. Moreover, defendant annexed to its cross motion a sworn peer review report which set forth a factual basis and medical rationale for the determination that there was a lack of medical necessity for the supplies provided (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Consequently, the burden shifted to plaintiff to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v [*2]Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In opposition to defendant’s cross motion, plaintiff submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see 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 Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, defendant’s cross motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the judgment is reversed, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated, and defendant’s cross motion is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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 (Carolyn E. Wade, J.), entered June 7, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

In support of its motion for summary judgment, defendant submitted an affidavit executed by its litigation examiner which was sufficient to establish that defendant’s NF-10 form, which denied plaintiff’s claim on the ground of lack of medical necessity, had been timely mailed (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]). Defendant also submitted a peer review report of its psychologist, to which plaintiff objected in its opposing papers on the ground that the report was not in proper form. The Civil Court correctly held that the peer review report was not in admissible form because, pursuant to CPLR 2106, defendant’s psychologist could not affirm the truth of the statements contained therein (see Pascucci v Wilke, 60 AD3d 486 [2009]) and while the peer review report contained a notary public’s stamp and signature, it contained no attestation that the psychologist had been duly sworn or that she had appeared before the notary public (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b).

With respect to plaintiff’s cross motion for summary judgment, a no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the [*2]defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant failed to pay or deny the claim within the requisite 30-day period, or that the 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]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). Here, while plaintiff demonstrated that the claim had not been paid, it failed to demonstrate either that defendant had failed to deny the claim or that defendant had issued a legally insufficient denial of claim form (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]).

Accordingly, the order is modified by providing that plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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 (Kathryn E. Freed, J.), entered December 2, 2009. The order, insofar as appealed from, granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint.

Subsequent to the entry of the order from which plaintiff appeals, plaintiff executed a release bearing the caption of the instant case as well as its index number, which stated that plaintiff released all claims “ever had, now have or hereafter can, shall or may, have for, upon or by reason of, an assignment of rights from [its assignor], insofar as the foregoing relates to the claims forming the object of the instant action.” Inasmuch as the claims at issue on this appeal were interposed in plaintiff’s complaint in this action, plaintiff voluntarily relinquished any right to recover upon these claims (see UCC 1-107).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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.), dated October 29, 2009. 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 branches of plaintiff’s motion seeking summary judgment with respect to so much of the complaint as sought to recover upon a claim for $612.59, and a claim for $167.07 for services rendered September 8, 2006 through September 19, 2006, are denied and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those 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, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case upon the five claims for which plaintiff was awarded summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

The affidavits submitted by defendant established that plaintiff’s claims for $612.59, $167.07 (for services rendered on August 15, 2006) and $167.07 (for services rendered September 8, 2006 through September 19, 2006) had been 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]) on the ground that the assignor had failed to appear at independent medical examinations (IMEs).

Defendant established its prima facie entitlement to summary judgment dismissing so much of the complaint as sought to recover upon claims in the amount of $612.59 and $167.07 (for services rendered September 8, 2006 through September 19, 2006). Defendant submitted an affidavit which established that the IME scheduling letters had been timely mailed to the assignor by Independent Physical Exam Referrals in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, [*2]P.C., 17 Misc 3d 16). Defendant also submitted an affirmation by the physician who was to perform the IMEs, which stated that the assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff failed to rebut defendant’s prima facie showing, defendant is entitled to summary judgment upon these claims.

However, with respect to the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s $167.07 claim for services rendered on August 15, 2006, defendant failed to submit an affidavit from someone with personal knowledge to establish that plaintiff’s assignor had failed to appear for scheduled IMEs on July 27, 2006 and August 10, 2006 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; see also South Nassau Orthopedic Surgery v Auto One Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51300[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As a result, we do not disturb so much of the order as awarded plaintiff summary judgment with respect to this claim.

Since defendant also failed to establish that it had timely denied plaintiff’s $668.28 claim (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), we do not disturb so much of the order as awarded plaintiff summary judgment with respect to this claim. Lastly, in light of defendant’s concession that it did not timely deny plaintiff’s $222.76 claim, we find no basis to disturb so much of the order as awarded plaintiff summary judgment with respect to this claim.

Accordingly, the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment with respect to so much of the complaint as sought to recover upon a claim for $612.59, and a claim for $167.07 for services rendered September 8, 2006 through September 19, 2006, are denied and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims are granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, January 14, 2013

APPEARANCES OF COUNSEL

Freiberg, Peck & Kang, LLP, New York City (Yilo J. Kang of counsel), for appellant. Mandell & Santora, Lynbrook (Eitan Nof of counsel), for respondent.

{**38 Misc 3d at 57} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, and the complaint is dismissed.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the parties’ attorneys stipulated that plaintiff had established a prima facie case regarding the submission of his claim in the amount of $1,310.94; that, some time after the receipt of plaintiff’s claim, defendant, a Florida insurer, had issued letters rescinding plaintiff’s assignor’s insurance policy ab initio on the ground that material misrepresentations had been made during the application process; and that defendant had refunded the assignor’s premiums. The parties’ attorneys further stipulated to the admission into evidence of plaintiff’s claim form, defendant’s rescission letter, the policy application, and the insurance policy. Finally, the parties agreed that the sole issue for the Civil Court to decide was “whether or not Defendant has to establish the reason for rescinding its policy.” After trial, the Civil Court found for plaintiff, holding that New York law applied and that defendant was required, but failed, to present evidence in support of the underlying basis for its rescission of the policy. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5512 [a]).

Contrary to the conclusion of the Civil Court, New York law does not govern this matter. Rather, applying a “grouping of contacts” analysis (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]), we find that Florida law applied since Florida had the most significant contacts with the contracting party and the contract (see also W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Florida Statutes Annotated § 627.409 permits the retroactive rescission of an insurance policy if there has been a material misrepresentation in an application for insurance. Where, as{**38 Misc 3d at 58} here, an insurer is not seeking a judicial decree of rescission in the action, but, rather, is seeking to establish that the policy had, in fact, been retroactively rescinded to a time prior to the commencement of the action, the insurer must simply demonstrate that it complied with the Florida statute by giving the requisite notice of the rescission to the insured and that it returned or tendered all premiums paid within a reasonable time after the discovery of the grounds for avoiding the policy (see Leonardo v State Farm Fire & Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also W.H.O. Acupuncture, P.C., 36 Misc 3d 4). Given the posture of this case, the insurer, under Florida law, does not have the burden of proving its good faith basis for the termination of the insurance policy (see generally Castellon v American Skyhawk Ins. Co., 785 So 2d 552 [Fla Dist Ct App, 3d Dist 2001] [cancellation of policy]). As the parties stipulated that the sole issue for trial was whether the insurer had to establish the reason for its rescission of the policy, and it was therefore essentially conceded that defendant had given notice of the rescission to the insured and had returned all premiums, defendant is entitled to judgment dismissing the complaint. We reach no other issue.

Accordingly, the judgment is reversed and the complaint is dismissed.

Rios, J. (dissenting and voting to affirm the judgment in the following memorandum). Plaintiff commenced this action to recover assigned first-party no-fault benefits. Plaintiff’s assignor was insured under an automobile insurance policy issued in the State of Florida, which contained a provision allowing for the retroactive cancellation of the policy if the policyholder made a “false, misleading” statement in the application for insurance. Six months following the accident involving plaintiff’s assignor, defendant disclaimed coverage based on its decision to void the policy ab initio. At trial, the insurance company presented no evidence other than its conclusion that the policy had been cancelled.

As the insurance policy was contracted in Florida, that state’s laws regarding cancellation are applicable (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]). While Florida law allows for the retroactive cancellation of an automobile policy based on a material misrepresentation (see Fla Stat Ann § 627.409), the courts of Florida require the production of evidence that establishes the material misrepresentation.{**38 Misc 3d at 59}

An insurer seeking to rescind a policy pursuant to Florida Statutes Annotated § 627.409 must prove detrimental reliance on the false statement (see Griffin v American Gen. Life & Acc. Ins. Co., 752 So 2d 621 [Fla Dist Ct App, 2d Dist 1999]; Boca Raton Community Hosp., Inc. v Brucker, 695 So 2d 911 [Fla Dist Ct App, 4th Dist 1997]), and it is for the trier of fact to determine if the breach is material (see United Servs. Auto. Assn. v Clarke, 757 So 2d 554 [Fla Dist Ct App, 4th Dist 2000]). In applying Florida law to the issue of cancellation, the Appellate Division held that sufficient evidence was required to demonstrate that the policy would not have been issued but for the misrepresentation (see Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855 [2009]).

Here, no competent evidence was presented to establish the claim of misrepresentation other than the conclusion of the insurer (see Matter of Centennial Ins. Co. v Capehart, 220 AD2d 499 [1995]; Matter of Electric Ins. Co. v Woods, 101 AD2d 840 [1984]; Viuker v Allstate Ins. Co., 70 AD2d 295 [1979]; Sanchez v Maryland Cas. Co., 67 AD2d 681 [1979]; see also Penaranda v Progressive Am. Ins. Co., 747 So 2d 953 [Fla Dist Ct App, 2d Dist 1999]). Therefore, I would affirm the judgment in favor of plaintiff on this ground.

Pesce, P.J., and Aliotta, J., concur; Rios, J., dissents in a separate memorandum.

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered February 27, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered February 27, 2012, 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 the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to the assignor and his attorney, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not 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 at 560).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 27, 2012

Civil Court of the City of New York, Kings County

126179/09

Attorneys for Plaintiff GBI Acupuncture, P.C. and Liberty Chiropractic P.C.

Law Offices of Melissa Betancourt

155 Kings Highway, 3rd Floor

Brooklyn, NY 11223

Attorneys for Defendant Esurance Ins. Co.

Law Offices of Michael G. Nashak

15 Metrotech Center, Floor 19

Brooklyn, NY 11201

Harriet L. Thompson, J.

Motion Cal No.Motion Seq. #

Papers Submitted to Special Term

on3/27/12,

DECISION/ORDER

Recitation, as required by CPLR §2219 (a), of the papers

considered in the review of this Motion

PapersNumbered

Notice of Motion ………………………………. ..1-2, 3

Order to Show Cause and Affidavits Annexed _____________

Answering Affidavits ..___4_______

Replying Affidavits ._____________

Exhibits _____________

Other …………………………………………………._____________

This action was commenced in or about December 3, 2009 by the service of a Summons and Complaint to recover first-party No-Fault benefits as a result of alleged injuries arising out of an [*2]alleged automobile accident which occurred on May 12, 2009. In or about March 11, 2010, the Defendant interposed a Verified Answer by its attorney which contained various affirmative defenses to the underlying complaint.

PROCEDURAL HISTORY

The Defendant, by Notice of Motion, moves this Court pursuant to CPLR§3212 for summary judgment dismissing the complaint. The Defendant contends that the complaint lacks merit because the Assignor, after service of timely and proper notices of four independent requests for examinations under oath (hereinafter referred to as “EUO”), at four different addresses to the assignor and two notices to her attorney, she and her attorney failed to appear. The Defendant proffers three supporting affidavits; to wit: ERIN SCHABE, the Claim Representative who attests to the receipt of the medical bills from the assignee, and the timely mailing of the denials based on the aforementioned breach of the insurance policy; JASON FORTIER as Claims Manager who attests to the mailing practices and procedures of the Defendant and assures this court that the proper procedures were employed by the Defendant to assure that the denials were timely and properly mailed in accordance with said practices and procedures, and were not returned to the Defendant as undeliverable; MICHAEL G. NASHAK, ESQ., the Managing Attorney for the Brooklyn Staff Counsel Office that attests to the proper business practices and procedures employed by his office in mailing, scheduling and conducting EUO’s in the ordinary course of business of his law office; MERCEDES ROMERO, his assistant clerk that attests to drafting and scheduling the EUO notices and having them signed by the aforesaid managing attorney, the mailing the EUO notices by regular mail or certified mail, return receipt requested, “where indicated”, confirming the EUO appearances, awaiting the arrival of the claimant and notifying the Managing Attorney and the Defendant of the appearance or nonappearance of the claimant at the EUO. The Defendant asserts that the failure of the Plaintiff to provide additional verification by the failure to appear for an EUO is a breach of an express condition precedent of the insurance policy and state regulations, and accordingly, the Plaintiff is not entitled to payment of No-Fault benefits under the policy. Consequently, the Defendant claims that there are no triable issues of fact and judgment should be granted in its favor.

In opposition to the Defendant’s motion, the Plaintiff attacks the sufficiency of the affidavit of each of the above named individuals, namely the lack of specificity of the time of mailing in ERIN SCHABE’S affidavit; the defective affirmation of MICHAEL G. NASHAK, ESQ., which excludes the state and county on the affirmation and lack of a legally sufficient caption of this case and argues that the affirmation neglects to specify that he was present in the office on the date of the alleged nonappearance by the assignor; the affidavit of MERCEDES ROMERO that lacks the proper index number for the case, proper legal caption and the name of the court. In addition, Plaintiff contends that MERCEDES ROMERO cannot attest to the nonappearance of the assignor on August 19, 2010 and September 10, 2009 because she did not work at that scheduled location. Further, the Plaintiff claims that the Defendant neglected to annex a letter dated August 19, 2009 to prove the proper number of EUO requests mandated by case authority and the insurance regulations to prove noncompliance with the insurance policy; the affidavit of MERCEDES ROMERO and MICHAEL G. NASHAK, ESQ., do not contain any certificate of mailing as alleged in their affidavits and thus, lack credibility; the EUO letters do not comport with the insurance regulations insomuch that the 3rd [*3]EUO letter and 4th EUO letter are only twelve (12) days apart; and the Defendant failed to establish that the EUO letters dated July 29, 2009 and September 4, 2009 were sent to the assignor and to her attorney.

The Plaintiff, by Notice of Cross Motion, moves this Court pursuant to CPLR §3212 for summary judgment asserting that the Plaintiff timely and properly mailed the prescribed bills and assignment of benefit form for No-Fault benefits; the Defendant received the bills and assignment of benefits form; the Defendant did not timely deny the bills; and the bills remain unpaid and are overdue. The Plaintiff presents the affidavit of YAKOV SIMKHAEV, the Supervisor of Billing for both assignors, that attests to the office practices and procedures for generating and mailing of their No-Fault claims and verification, and receipt of the denials. She describes the business practice and procedures of the office of the Plaintiff from the initial office visit of the claimant to the creation of the medical bills generated in the ordinary course of business. She states that she personally mailed the bills by first class mail with a certificate of mailing; and affirms that payment is overdue on the bills.

FINDING OF FACTS AND CONCLUSION OF LAW

This court is cognizant of the reality that many lawyers invariably seize every opportunity to assert the right to victory by summary judgment based on “technical” or “procedural” irregularities in the pleadings. More often than not, these claims are often obscure and insignificant to the ultimate outcome of the litigation.

Having this prospective in mind, lets look to the law, specifically, CPLR §104 that states that the Civil Practice Law and Rules shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding. This section of the law was intended to liberalize court procedures and do away with unnecessary and burdensome motion practice. The courts in this state, where at one time, “formal precision was the sovereign talisman…” have long ago held that “the rule of strict construction of statutes in derogation of the common law principles [are] inapplicable”. Schneider v. Schneider, 17 NY2d 123, 127, 269 NYS2d 107, 216 NE2d 318, 320 (1966). One of the few areas that the courts continue to enforce procedural conservatism is with provisional remedies. Valentine Dolls, Inc. v. McMillan, 25 Misc 2d 551, 202 NYS2d 620 (1960).

With the same principles at the forefront, careful attention should also be given to a companion provision of the CPLR, namely, Section 2001 which maintains that “at any stage of an action the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just. This section is supportive of the policy in this state that just determination shall be based on matters of substance, not form and to the ultimate end of justice, that slight mistakes or irregularities shall not invalidate legal proceedings.

As significant, there are other related provisions in the CPLR that should also be reviewed to this end. CPLR 5512(a) and 5520 make express provision for similar relief in connection with omissions or defects in taking appeals. Looking to CPLR §3026 which expressly mandates that pleadings shall be liberally construed and that defects in pleadings shall be ignored if a substantial right of a party is not prejudiced. The reader is urged to generally review the Practice Commentaries in the CPLR under these respective statutory provisions; also see Siegel, New York Practice §6, et [*4]seq. (2nd ed.)

These statutes are routinely enforced by our courts and more recently, the Appellate Division, Second Department, reaffirmed the underlying policy of the judiciary in an election law case where the court found that the Supreme Court properly amended the caption to designate an individual, who was originally denominated as the respondent to the petitioner on the grounds that the “defects, mistakes, and irregularities in pleadings are to be ignored by the court absent a showing of prejudice; see also MacKay v. Johnson, 54 AD3d 428, 863 NYS2d 85 [2008]; and Hoot Croup, Inc. v. Caplan, 9 AD3d 448, 779 NYS2d 922 [2004] finding in a case where the plaintiff properly commenced the action in the Supreme Court, Dutchess County and the summons and complaint incorrectly bore a “County Court, Dutchess County” caption, that this ministerial error provided no basis for disturbing a money judgment granted for plaintiff by way of summary judgment. “Defects, mistakes, and irregularities in pleadings are to be ignored by the court absent a showing of prejudice” (First Wis. Trust Co. v Hakimian, 237 AD2d 249 [1997]; see CPLR 104, 2001, 2101 [f]; 3025 [c]; 3026). In that case, the defendant failed to demonstrate that he incurred any prejudice as a result of the incorrect caption on the summons and complaint. Indeed, he timely answered the complaint and opposed the motion for summary judgment.

Additionally, the court has evaluated the case of Maximum Physical Therapy, P.C. v. Allstate Ins. Co., 8 Misc 3d 1021(A), 803 NYS2d 19 [NY Civ. Ct., 2005) relied upon by the Plaintiff to declare the above named affidavits a nullity and finds the Plaintiff’s claim without merit. This case stands for the proposition that the affirmation of an attorney without personal knowledge has no probative value and can not expressly raise a triable issue of fact to defeat a motion for summary judgment. In that case, the court found that the affidavit of plaintiff’s corporate officer was also insufficient since “the affidavit fails to indicate the specific sources of his knowledge (e.g. business records or other documents he may have researched or reviewed or persons with whom he consulted) (Barraillier v. City of New York, 12 AD3d 168 [1st Dept. 2004] and contains conclusory allegations regarding his personal knowledge (Wechsler v. People of State of NY, 13 AD3d 941 [3d Dept. 2004]). Mr. Dianalan’s affidavit contains no recitations of fact particular to this action, such as one or more of the following: the specific corporate office held (i.e., president, treasurer, secretary, etc.), the date or dates of service, the services or supplies allegedly provided, date or dates of mailing, or amount outstanding. Rather, Mr. Dianalan’s affidavit contains boilerplate language about the authenticity of non-specified bills and assignment from a non-specified assignor which was witnessed either by him or someone on his staff in his office on an unspecified date (see e.g. Vista Surgical Supplies Inc. v. Utica Mutual Ins. Co., 7 Misc 3d 833 [Civ Ct, Kings County 2005]).”

The court specifically left the technical defects in the affidavit last for consideration. For our purposes here, these irregularities were dictum and not the law of the case. The Court opined that the affidavit of the corporation officer is “defective as to form to the extent of one or more of the following: the affidavit contains no caption, no venue, no opening statement and the signature is not at the bottom of the document, but is on the top of a page isolated by itself, making it appear to the court that was separate and not a part of the body of the document. Each paper used in a case should have a caption which consists of the name of the court and the venue of the action, its title, and, to the right of the title, what the paper is (e.g., affidavit in support of motion, affirmation in support of motion) (see Siegel, NY Practice § 205 at 324 [3d ed]). An affidavit should ordinarily [*5]begin with a recitation of venue (the state, county, and city in which it is made) and contain an opening statement (i.e., “John Smith, being duly sworn, deposes and says”). The signature of the affiant in an affidavit should appear at the bottom of the statement, as opposed to being isolated on the last page, separate and apart from the entire body of the document (see Mellinkoff’s Dictionary of American Legal Usage 17 [1992]). Moreover, to facilitate the clear presentation of the matters set forth in the affidavit, so that, allegations might easily be referenced in subsequent legal papers, the affidavit should contain separate, numbered paragraphs for each factual allegation (see generally Phillips v. Girdich, 408 F3d 124 [2d Cir 2005)].”

In this case, the affirmation of MICHEAL G. NASHAK, ESQ. and MERCEDES ROMERO do contain a caption of the case, albeit, irregular and does not contain the typical formal recitation of the caption. The irregularities in both sworn statements do not render them inadmissible for the purposes of this motion. It is the opinion of this court that although the Judge Lane in Maximum Physical Therapy, P.C. v. Allstate Ins. Co., supra, offered instructive criticism of the procedural abnormalities in Defendant’s papers, his decision did not rely on those procedural irregularities to deny the Plaintiff motion but instead the substantive content of the papers. This pragmatic jurist shall not elevate form over substance; such defects like in the instant case, are of such an inconsequential nature that the CPLR, specifically, §3026 gives broad discretion to this court to ignore them particularly since the Plaintiff has not offered any rationale indicative of prejudice in any manner or form. Accordingly, this court shall ignore these minor procedural infractions and not even offer to amend them for they bears no harmful consequences . As the practice commentaries urge all practioners, the liberal construction of all papers in a court action is intended to discourage useless pleading attacks by placing the burden on the attacker to show prejudice as well as failure of compliance. See, Connors, Practice Commentaries, McKinney’s Cons. Laws of NY, CPLR 3026:4-6.

Continuing on to the substantive elements of the respective supporting affidavits beginning with ERIN SCHABE, the Claim Representative, this court finds sufficient the detailed explanation based on her personal knowledge and job responsibilities of the business practices and procedures implemented by her office on receipt of a bill for medical services by the Defendant. She is the employee that puts the denials in the envelopes and puts the mail in the proper receptacles in the office for pick up by the Post Office, and attests that the mail (denials or verification) to this specific provider were not returned.

The affidavit of JASON FORTIER employed at the Defendant’s office since 2006, bridges any alleged gaps in the mailroom procedures for the insertion of the denial or verification in the envelope by the Claims Representative and/or Adjuster to its travel from that individual’s desk though the office to the mailroom. As the supervisor of the mailroom, this court is persuaded that he has knowledge of the practices and procedures of that department and sufficiently describes the process including the method, time and date that the mail is picked up by the Post Office employees for delivery to the actual Post Office daily. Unlike the affidavit in Maximum Physical Therapy, P.C. v. Allstate Ins. Co., supra, the instant affidavit states the specific sources of his knowledge (he is the supervisor of the mailroom employees) and does not contain conclusory allegations regarding his personal knowledge (Wechsler v. People of State of NY, 13 AD3d 941 [3d Dept. 2004]). He also attests that the business practices were followed in this case and his review of the record of this case [*6]do not support any claim that it was not followed in this instance.

Contrary to the contentions by the Plaintiff, this court need not know the time that the mail was put into the receptacle; the specific time is irrelevant; what is relevant is whether the practice and procedure employed by the Defendant was consistently followed daily at around 4:00 p.m. when the mail (denials/verifications) is deposited in the custody and control of the US Post Office employee that were generated that day by the Claims Representative. Moreover, JASON FORTIER also attests that any mail that is processed after 4:00 p.m. by the Claims Representatives is mailed the following business day. So, there are specific times that the mail goes out each day and the court finds no omission or ambiguity in the mailing procedures of the Defendant.

Since the Defendant has established the method employed for the generation of the denials and the mailing procedures for their office, this Court shall address the EUO requests from the Defendant.

It has been firmly established that an insurer does not have to pay or deny a claim until all demanded verification has been provided. St. Barnabas Hosp. v. American Transit Ins. Co., 57 AD3d 517 ( 2nd Dept., 2008); New York & Presbyterian Hosp. v. Allstate Ins. Co., 31 A.D3d 512 (2nd Dept., 2006). Verification extends the time for the insurer to pay or deny a claim by permitting the insurer to demand and obtain information needed to establish proof of the claim so the insurer can properly determine whether the claim should be paid or denied. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 556 (2008). Delay letters have been confused with verification and verification is often obscure. In Ocean Diagnostic Imaging P.C. v. Citywide Auto Leasing Inc., 8 Misc 3d 138 (A), 2005 Slip Op 51314[U], the Appellate Term Second Department held that “an insurer may not rely on a letter, even if denominated a verification request, that merely informs a claimant that a decision on the claim is delayed pending an investigation, and without specifying a particular form of verification and the person or entity from whom the verification is sought, to toll the 30-day claim determination period.” See also the recent matter of Superior Oxygen & Othro Supplies, Ltd. v. Auto One Ins. Co., 2012 NY Slip Op 50348(U).

Unlike the affidavits in Maximum Physical Therapy, P.C. v. Allstate Ins. Co., supra, the affirmation of MICHAEL G. NASHAK, ESQ. and affidavit of MERCEDES ROMERO are inopposite. Not only do they contain sufficient factual claims, they are also based on their personal knowledge of the facts. The sworn statements of both the attorney and the paralegal are not conclusory but describe in sufficient detail the assignment of the cases for the purposes of scheduling and conducting EUO’s. The paralegal, MERCEDES ROMERO, prepares the letter on the dates of the letters, annexed as Exhibits “I”, “J”, “K” and “M”, and has the managing attorney sign the letter(s). She places them in the envelopes and mails them either by regular mail or certified mail, return receipt requested. An examination of each letter reveals that some were sent by regular mail and others by certified mail which contain the certified mail number on the letter. Even if the letter dated August 19, 2009 is not annexed to the motion papers, the exclusion of that letter has no significance because it would be superfluous. Three EUO letters, dated June 3, 2009 (Exhibit “I”), July 30, 2009 (allegedly misdated and should be June 30, 2009) (Exhibit “J”) and July 17, 2009 (Exhibit “K”), had already been mailed to the claimant at four different addresses and then two EUO letters, dated July 29, 2009 (Exhibit “L”) and September 4, 2009 (Exhibit “M”) were sent to her attorney by facsimile and regular mail. [*7]

The Plaintiff never rebuts by admissible evidence, the presumption of receipt of the EUO notices by any affidavit of a person with actual knowledge of the case. In fact, the Plaintiff’s opposition papers contain only an affirmation from the attorney. As the Court of Appeals has firmly held an affidavit or affirmation from a party’s attorney who lacks personal knowledge of the facts is of no probative value and is insufficient to support an award of summary judgment (see Zuckerman v. City of New York, 49 NY2d 557 [1980];Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc 3d 133(A), [App Term, 2d and 11th Jud Dists 2004]; Wisnieski v. Kraft, 242 AD2d 290 [2d Dept 1997]; Lupinsky v. Windham Constr. Corp., 293 AD2d 317 [1st Dept 2002]). Thus, even when the attorney has affirmed that a review of the file and records of his client is the basis of his knowledge, the Appellate Term has consistently determined that it is insufficient to defeat a motion for summary judgment motion. (see Park Health Ctr. v. Green Bus Lines, Inc., 2002 NY Slip Op. 40029[U]) in which the court found that “[t]he defendant’s attorney submitted an opposing affirmation, based on his knowledge which was “obtained from a reading of the files,” wherein he alleged that the NF-2 form was not in the certified mailing and asserted that defendant first received a completed no-fault application on April 10, 1995 was insufficient to defeat summary judgment. In the absence of an affidavit from one with personal knowledge of the facts, the defendant’s attorney’s affirmation is insufficient to establish the existence of a triable issue of fact (Drug Guild Distribs. v 3-9 Drugs, 277 AD2d 197, 715 NYS2d 442). Likewise, in Drug Guild Distribs. v 3-9 Drugs, supra, the Appellate Division held that “an affidavit of [the Defendant] president and an affirmation of counsel, that it never ordered or received these goods, and that the invoices, receipts, and account statement produced by the plaintiff were fraudulent” were insufficient to defeat summary judgment. “The defendant’s conclusory denial of the transactions is insufficient to counter the facts established by the plaintiff’s documentary evidence”. See also Park Health Center v. Green Bus Lines, Inc., (2002, WL 416484, 2002 NY Slip Op. 40029(U).

As the Defendant correctly states in the instant motion, all automobile insurance policies with No-Fault endorsements in our state contain the prescribed language of the Insurance Regulations, specifically, 11 NYCRR 65-1.1 that provides that “[u]pon request by the Company, the eligible injured person or that person’s assignee or representative shall:…(b) as may reasonably be required to submit to examination under oath by any person named by the Company and subscribe same…..” Moreover, 11 NYCRR 65-3.5 ( c) states that “[t]he insurer is entitled to received all items necessary to verify the claim directly from the parties from whom such verification was requested.” Then, lastly, as correctly stated by the Defendant, 11 NYCRR-1 provides in pertinent part as follows: [n]o action shall lie against the Company, unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage. In applying these general statutory and policy requirements to this case without the necessity of the numerous cases that have firmly established precedent for the mandatory compliance of provides to respond to EUO requests, the court finds these additional facts.

The Defendant acknowledged receipt of the bills on the following dates: June 26, 2009 (DOS-5/19/2009-5/19/2009 and DOS 5/19/2009-6/15/2009); June 30, 2009 (DOS-5/19/2009-6/22/2009); July 30, 2009 (DOS-6/22/2009-7/15/2009); and July 30, 2009 (DOS-6/23/2009-7/15/2009). The corresponding notices for the EUO to the assignor were on June 3, 2009, June 30, 2009, July 17, 2009; and then to her attorney on July 29, 2009 and September 4, 2009. All of the EUO requests were timely as well as their responding denials. To follow the statute, the Defendant [*8]additional verification on June 3, 2009 for EUO on June 26, 2009, with the follow up request on June 26, 2009 for EUO on July 14, 2009 were sufficient. But the Defendant goes further, the third request for July 17, 2009 for EUO on July 30, 2009. The latter was adjourned by the Plaintiff’s assignor’s attorney so the Defendant send the fourth request dated July 29, 2009 for the EUO for August 19, 2009 and then the fifth request based on the nonappearance of counsel and his claimant, dated September 4, 2009 for EUO for September 10, 2009. A little common sense is sometimes not so common; if the attorney made a request for an adjournment, it stands to reason that his client received the EUO notice. Since he was subsequently notified twice, and he and the claimant did not appear, the Defendant offered more than ample opportunity for compliance with the policy and the law.

Lastly, the court finds that it is not fatal that the affirmation of the Defendant’s attorney did not explicitly state that he was in the office on the date of the no-show for the EUO. He affirmed that the notices were properly mailed and that the assignor failed to appear. The paralegal attests the she awaited the arrival of the claimant and notified the managing attorney and the Defendant of the nonappearance of the claimant at the EUO. Notwithstanding the fact that MERCEDES ROMERO is not employed by the other office where the EUO was scheduled, namely on August 19, 2010 and September 10, 2009, the other EUO no- shows after notice to assignor and then to two additional notices to her attorney, is sufficient to establish that the assignor failed to comply with the insurance regulations and policy. It is glaring to this court that the Plaintiff assignor and her attorney did not appear for five (5) properly and timely scheduled EUO’s and have not proffered even one excuse or explanation for the lack of cooperation with the insurer.

Therefore, in our case, despite the creative arguments in the opposition papers to this summary judgment motion by the attorney for the Plaintiff, they are unavailing and cannot defeat summary judgment by the Defendant. As important, the opposition papers themselves are patently defective. The opposition papers should contain separate, numbered paragraphs for each factual allegation as was noted in Maximum Physical Therapy, P.C. v. Allstate Ins. Co., supra, ironically relied on by the Plaintiff. These opposition papers reminds this court of the old adage “the pot cannot call the kettle black”. Although this court has overlooked this procedural irregularity and addressed the most pertinent of the Plaintiff’s claims, the absence of an affidavit by a person with actual knowledge does not constitute evidence in admissible form and accordingly, has failed to raise any triable issues of fact.

For all of the reasons stated above, the Plaintiff’s motion for summary judgment is denied and the motion by the Defendant for summary judgment is granted in its entirety and the complaint is dismissed with prejudice.

A courtesy copy of this decision and order shall be mailed by this court to the attorneys for the respective parties.

The Defendant shall serve a copy of the Order and Decision with Notice of Entry on the Plaintiff within thirty (30) days of the date of the entry of this Order by the Clerk of the Court and shall file proof of service thereof with the Clerk of the Court.

This constitutes the Decision and Order of this court. [*9]

December 26, 2012