[*1]

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

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

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

Ordered that the order is affirmed, with costs.

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

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

[*1]

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

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

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

Ordered that the order is affirmed, with costs.

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

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

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

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

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

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

Decided on January 15, 2015

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 10, 2013. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for a KO custom rigid knee support.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for a KO custom rigid knee support is 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 as denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for a KO custom rigid knee support. It is undisputed that on January 26, 2011, defendant received one claim form, which listed five different medical supplies for which plaintiff sought reimbursement as assignee of the injured party. The affidavit of defendant’s no-fault litigation examiner 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]) its verification request and follow-up verification request. Defendant demonstrated that it had not received the requested verification, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action on the claim. Consequently, the 30-day period within which defendant was required to pay or deny the claim did not begin to run (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cen. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and plaintiff’s action is premature.

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for a KO custom rigid knee support is granted.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 13, 2013, deemed from a judgment of the same court entered March 27, 2013 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 13, 2013 order granting defendant’s motion for summary judgment and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.

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

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

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

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

Accordingly, the judgment is affirmed.

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

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

Per Curiam.

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

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

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

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

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on December 31, 2014

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered September 18, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Jennifer G. Schecter, J.), entered September 18, 2013, affirmed with $10 costs.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely and properly denied plaintiff’s claim for no-fault first-party benefits, through the affidavits of employees of its mailing center and of the entity which administers its no-fault claims, detailing their respective office mailing procedures, accompanied by a certificate of mailing (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229,330 [2004]), and the peer review report of its orthopedic doctor, which set forth a sufficient factual basis and medical rationale for her stated conclusion that the medical supplies provided by plaintiff to its assignor were not medically necessary (see Triangle R. Inc. v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 143[A], 2011 NY Slip Op 51663[U] [App Term, 1st Dept 2011]). Plaintiff’s opposition, consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof, was insufficient to raise a triable issue as to medical necessity (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]).

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

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on December 30, 2014

Defendant appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered July 3, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered July 3, 2013, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted in its entirety. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim for first-party no-fault benefits in the amount of $662.89, by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his counsel, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to plaintiff’s central argument, defendant submitted competent evidence of the assignor’s nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant’s third-party IME scheduler attesting to the affiants’ personal knowledge of their office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).

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

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

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

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

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 18, 2013, which granted plaintiff insurer’s motion for summary judgment declaring that defendants-appellants are not entitled to no-fault benefits, unanimously modified, on the law, solely to declare that defendants-appellants are not entitled to no-fault benefits, and otherwise affirmed, without costs.

Plaintiff established that defendants are not entitled to no-fault benefits because their assignors failed to appear at scheduled examinations under oath (EUOs). This Court in Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]) held that the failure to submit to requested independent medical examinations (IMEs) constitutes a breach of a condition precedent to coverage under a no-fault policy and voids coverage regardless of the timeliness of the denial of coverage (id. at 560). Although the instant case involves the failure to appear at EUOs, and not IMEs, this Court’s holding in Unitrin applies to EUOs (see e.g. Interboro Ins. Co. v Perez, 112 AD3d 483, 483 [1st Dept 2013]; Seacoast Med., P.C. v Praetorian Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52354[U] [App Term, 1st Dept 2012]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Defendants do not dispute that their assignors failed to appear at their first EUOs, and plaintiff established, through admissible evidence, that the assignors failed to appear at their second EUOs (see Arco Med. NY, P.C. v Metropolitan Cas. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52001[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Plaintiff also established that the statements on the record were business records (see e.g. People v Cratsley, 86 NY2d 81, 90-91 [1995]; One Step Up, Ltd. v Webster Bus. Credit Corp., 87 AD3d 1, 11-12 [1st Dept 2011]). Although plaintiff was required to show (and did show) that the assignors each failed to appeared at two EUOs (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), plaintiff was not required to demonstrate that the assignors’ nonappearances were willful (see Unitrin, 82 AD3d at 561).

[*2] Defendants’ argument that plaintiff failed to establish that it had mailed the EUO notices to the assignors’ correct addresses is unpreserved (see e.g. Ta-Chotani v Doubleclick, Inc., 276 AD2d 313, 313 [1st Dept 2000]) and unavailing (see American Tr. Ins. Co. v Leon, 112 AD3d 441, 442 [1st Dept 2013]). Similarly, their argument that plaintiff waived the defense of the assignors’ nonappearance because plaintiff did not establish that it ever denied defendants’ claims is unpreserved (see 276 AD2d at 313). In any event, the argument is unavailing, as defendants’ own verified answer alleged that plaintiff had denied their claims.

Defendants failed to show that summary judgment is premature due to outstanding discovery (see Interboro, 113 AD3d at 597).

We modify the court’s order solely to make a declaration in plaintiff’s favor (see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]; see also QBE Ins. Corp. v Jinx-Proof Inc., 102 AD3d 508, 510 [1st Dept 2013]).

We have considered defendants’ remaining arguments and find them unavailing. Concur—Tom, J.P., Friedman, Renwick, Manzanet-Daniels and Kapnick, JJ.

Decided on December 22, 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 (Richard G. Latin, J.), entered April 5, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion and granted defendant’s cross motion. Plaintiff was not entitled to summary judgment, since it failed to demonstrate, prima facie, either that defendant had failed to timely deny the claims or that the denial of claim forms were conclusory, vague or without merit as a matter of law (see Insurance Law § 5102 [a]; 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]).

On its cross motion for summary judgment, the burden was on defendant to demonstrate the timely and valid cancellation of the insurance policy at issue based on nonpayment of the premium. The papers submitted by defendant in support of its cross motion were sufficient to make a prima facie showing that defendant met its initial burden in compliance with Vehicle and Traffic Law § 313 (see Matter of Auto One Ins. Co. v Forrester, 78 AD3d 1174 [2010]; GEICO Indem. v Roth, 56 AD3d 1244 [2008]; Queens Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 35 Misc 3d 146[A], 2012 NY Slip Op 51060[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). The burden then shifted to plaintiff, as the party claiming coverage, to establish defendant’s noncompliance with the statutory requirements as to form and procedure. Inasmuch as plaintiff submitted no opposition to defendant’s cross motion, plaintiff failed to raise a triable issue of fact (see Flagstar Bank v Bellafiore, 94 AD3d 1044 [2012]) as to the validity of the cancellation of the policy.

Accordingly, the order is affirmed.

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