SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 29, 2008, deemed from a judgment of the same court entered June 13, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 29, 2008 order granting defendant’s motion to dismiss, dismissed the complaint.

Judgment affirmed without costs.

Plaintiffs commenced this action in the Civil Court, Queens County, to recover assigned first-party no-fault benefits for injuries their assignor sustained in a motor vehicle accident on June 24, 2003, on the ground that payment of said benefits was overdue. A wholly owned subsidiary of defendant subsequently commenced a Supreme Court action against plaintiffs herein, as well as others, in which it alleged that the same June 2003 accident was staged, and sought a declaratory judgment that there was no coverage as to any claim for first-party no-fault benefits and, thus, that it was not required to defend or indemnify its insured. In June 2007, the Supreme Court awarded judgment to the plaintiff therein on default. In April 2008, defendant herein moved to dismiss the instant complaint, arguing that this action was barred by virtue of the Supreme Court order. The Civil Court granted defendant’s motion. The instant appeal by plaintiffs ensued. A judgment dismissing the complaint was subsequently entered.

The doctrines of res judicata and collateral estoppel are designed to put an end to a matter once it is duly decided (see Siegel, NY Prac § 442, at 747 [4th ed]). Res judicata, or claim [*2]preclusion, is invoked when a party, or one in privity with the party, seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same, or series of, transactions which were raised, or could have been raised, in the prior action (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Res judicata applies “when a different judgment in the second [action] would destroy or impair rights or interests established by the first” (id. at 306-307).

Clearly, the determination as to whether there was coverage is crucial to both plaintiffs and defendant herein, and arises out of the same transaction, i.e., the subject accident (see e.g. Abraham v Hermitage Ins. Co., 47 AD3d 855 [2008]; Sabatino v Capco Trading, Inc., 27 AD3d 1019, 1020 [2006]), and a different judgment in the instant action would destroy or impair rights or interests established by the Supreme Court judgment (see e.g. Schuykill Fuel Corp., 250 NY at 306-307). Moreover, the record establishes that defendant and the wholly owned subsidiary had the requisite privity (see e.g. Spasiano v Provident Mut. Life Ins. Co., 2 AD3d 1466 [2003]). Consequently, plaintiffs were barred from relitigating the claim pursuant to the doctrine of res judicata. Plaintiffs’ remaining contentions have no merit or are unpreserved for appellate review. Accordingly, defendant’s motion was properly granted, and the order is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 12, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated February 21, 2008. The order, insofar as appealed from as limited by the brief, denied so much of defendant’s motion as sought summary judgment with respect to four bills ($111.38, $55.69, $122.88 and $61.44) for services rendered between November 28, 2006 and January 13, 2007.

Order, insofar as appealed from, reversed without costs and so much of defendant’s motion as sought summary judgment with respect to four bills ($111.38, $55.69, $122.88 and $61.44) for services rendered between November 28, 2006 and January 13, 2007 granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion which, insofar as is relevant to this appeal, sought summary judgment with respect to four bills ($111.38, $55.69, $122.88 and $61.44) for services rendered between November 28, 2006 and January 13, 2007, finding that the “only issue remaining for trial is medical necessity. Both plaintiff and defendant established their prima facie case.” The instant appeal by defendant ensued.

Contrary to plaintiff’s contention, the affidavit of defendant’s claim representative established that the denial of claim forms, which denied the subject claims on the ground of lack of medical necessity based upon an independent medical examination (IME) report, were timely mailed in accordance with defendant’s standard office practice or procedure used to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

The papers submitted by defendant in support of its motion, including the affirmed IME [*2]report and an affidavit executed by the acupuncturist who performed the IME, established, prima facie, a lack of medical necessity for the services at issue. The opposing affidavit submitted by plaintiff’s treating acupuncturist merely stated that she disagreed with the results of the IME report without setting forth any facts to support her conclusion. Consequently, the opposition papers failed to raise a triable issue of fact as to medical necessity. As a result, defendant’s motion for summary judgment dismissing the claims at issue should have been granted (see Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [App Term, 1st Dept 2008]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 12, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Richmond County (Johnny Lee Baynes, J.), entered November 29, 2007. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 or, in the alternative, for summary judgment determining that defendant’s denial of claim form was timely mailed.

Order modified by adding thereto the provision that the acknowledgment of service annexed to defendant’s moving papers is deemed timely filed; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved pursuant to CPLR 3211 to dismiss the action without prejudice because plaintiff failed to file the summons with proof of service as required by former section 409 of the New York City Civil Court Act or, in the alternative, for summary judgment determining that defendant’s denial of claim form was timely mailed. In opposition, plaintiff asked for nunc pro tunc relief pursuant to CCA former 411. The Civil Court denied defendant’s motion. This appeal by defendant ensued.

Dismissal of the action without prejudice due to a violation of CCA former 409, which required that a copy of the summons with proof of service be filed within 14 days after service of the summons, is not warranted where, as here, plaintiff requested nunc pro tunc relief (see CCA former 411). Under the circumstances presented, such nunc pro tunc relief should have been granted.

The affidavit submitted by defendant’s claims examiner failed to establish that defendant timely mailed its verification requests and its denial of claim form based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (see New [*2]York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51862[U] [App Term, 2d & 11th Jud Dists 2008]; Horton Med., P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant did not establish that its denial of claim form was timely. Accordingly, defendant’s motion was properly denied and the order is modified to provide for nunc pro tunc relief.

Weston, J.P., and Steinhardt, J., concur.

Golia, J., dissents in a separate memorandum.
Golia, J., dissents and votes to reverse the order and grant defendant’s motion to dismiss the complaint.

This appeal turns on plaintiff’s failure to comply with the requirements of the New York City Civil Court Act that were in effect at the time the underlying action was commenced.

The Civil Court action was commenced on or about November 10, 2003, and defendant served an answer upon plaintiff dated December 22, 2003.

Despite the fact that former section 409 of the Civil Court Act, which was in effect at the time, required that a copy of the summons with proof of service be filed within 14 days of service, to wit, November 24, 2003, this plaintiff did not file those documents until March 12, 2007, nearly 3¼ years later. This is a rather extensive oversight.

Furthermore, I disagree with the representation presented by the majority that, “In opposition, plaintiff asked for nunc pro tunc relief pursuant to CCA former 411”. In fact, what plaintiff stated in its opposition papers was, “If this court deems it necessary, I would request the filing of the summons and complaint be accepted nunc pro tunc”. This inchoate statement was not even a precatory “request” but, rather, a conditional offer to make such request only “if this court deems it necessary”. This failure to file an application for relief is important because if plaintiff had made an affirmative request for nunc pro tunc relief, then it would have been required to demonstrate why it was entitled to such relief. That would have necessitated an explanation of why it took more than 1,200 days to comply with a simple requirement that should have been done in 14 days.

I do not deem it necessary or even advisable to grant plaintiff’s or its counsel’s unsupported request for nunc pro tunc relief for counsel’s failure to comply with well- established rules, which were disregarded for approximately 3¼ years. I would simply dismiss the complaint without prejudice.
Decision Date: June 12, 2009

[*1]

Supreme Court, Appellate Term, Second Department, June 12, 2009

APPEARANCES OF COUNSEL

Gullo & Associates, LLP, Brooklyn (Anthony DeGuerre of counsel), for appellant.

{**24 Misc 3d at 69} OPINION OF THE COURT

Memorandum.

Order modified by adding thereto the provision that the acknowledgment of service annexed to defendant’s moving papers is deemed timely filed; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved pursuant to CPLR 3211 to dismiss the action without prejudice because plaintiff failed to file the summons with proof of service as required by former section 409 of the New York City Civil Court Act or, in the alternative, for summary judgment dismissing the complaint on the ground that the action was premature since defendant never received the claim forms at issue. In opposition, plaintiff asked for nunc pro tunc relief pursuant to CCA former 411. The Civil Court denied defendant’s motion. This appeal by defendant ensued.

Dismissal of the action without prejudice due to a violation of CCA former 409, which required that a copy of the summons with proof of service be filed within 14 days after service of the summons, is not warranted where, as here, plaintiff requested nunc pro tunc relief (see CCA former 411). Under the circumstances presented, such nunc pro tunc relief should have been granted. Further, while defendant asserts that the action is premature since it never received the claims which are at issue, the affidavit of defendant’s claims examiner was insufficient to establish such assertion as a matter of law (Zuckerman v City of New York, 49 NY2d 557[*2][1980]; see generally Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d Dept, 11th & 13th Jud Dists 2009]). Accordingly, defendant’s motion was properly denied and the order is modified to provide for nunc pro tunc relief.

Golia, J. (dissenting and voting to reverse the order and grant defendant’s motion to dismiss in the following memorandum). Here, plaintiff previously filed a motion for summary judgment, which included misrepresentations and questionable fraudulent billing, and which demonstrated an intentional failure to comply with requirements of the Civil Court Act, and refusal to affirmatively move to correct such failure. This motion for summary judgment was then withdrawn for reasons that are not contained in the record.{**24 Misc 3d at 70}

Those papers which are in this file contain an affirmation from plaintiff’s attorney, and certain documentary proof which the plaintiff’s attorney argued was sufficient to warrant summary judgment in favor of plaintiff.

The documentary proof that was annexed was not a doctor’s office records or a doctor’s affirmation relating to treatment. It was not even an NF-2 claim form. The submitted document was a “Health Insurance Claim Form” which set forth a list of dates representing an extensive series of more than 30 treatments performed by the claimant Dr. Dugo upon the alleged eligible injured insured Judy Nieves during the time period at issue in this no-fault case. A problem arises in that this “form” specifically asserts that the patient’s condition is not related to an auto accident or for that matter also not related to employment or any “other accident.” Clearly, this document is not sufficient to establish proof of treatment as a result of a covered automobile accident. Nevertheless, this document does raise the question as to whether or not these medical treatments were submitted for payment to both this no-fault carrier as well as to a different health insurance carrier with conflicting statements. To me, there appears to be grounds to question whether the provider submitted a claim to this “no-fault” carrier that the alleged injury was caused by an auto accident and another claim to a “health insurance” carrier that the injury was not caused by an auto accident.

Inasmuch as that motion was withdrawn, it is not part of this appeal and plays no part in my dissent.

What is part of this appeal is plaintiff’s failure to comply with the requirements of the Civil Court Act that were in effect at the time the underlying action was commenced.

The Civil Court action below was commenced on or about September 24, 2004, the defendant acknowledging that it was served and whereupon it served an answer upon plaintiff dated October 13, 2004.

Despite the fact that section 409 of the Civil Court Act, which was in effect at the time, required that a copy of the summons with proof of service be filed within 14 days of service, to wit: October 8, 2004, this plaintiff did not file those documents until March 12, 2007, nearly 2½ years later.

Indeed, it cannot even be argued that it was a mere oversight that was corrected as soon as [*3]the plaintiff became aware of the error. On May 3, 2005 the defendant served the plaintiff with a demand that it purchase an index number and file its papers in{**24 Misc 3d at 71} court. It then took the plaintiff another 22 months before it deigned to comply with either the court rule, or the defendant’s demand.

Furthermore, I disagree with the representation presented by the majority that “[i]n opposition, plaintiff asked for nunc pro tunc relief pursuant to CCA form 411.” In fact, what the plaintiff stated in its opposition papers was “[i]f this court deems it necessary, I would request the filing of the summons and complaint be accepted nunc pro tunc.” This inchoate statement was not even a precatory “request” but rather a conditional offer to make such request only “if this court deems it necessary.” This failure to file an application for relief is important because if plaintiff had made an affirmative request for nunc pro tunc relief, then it would have been required to argue why it was entitled to such relief. That would have necessitated an explanation of why it took more than 800 days to comply with a simple requirement that should have been done in 14 days, and why this plaintiff apparently ignored the defendant’s demand that plaintiff comply some two years before it did so.

I do not deem it necessary or even advisable to grant plaintiff’s or its counsel’s unsupported request for nunc pro tunc relief for counsel’s failure to comply with well-established rules which were knowingly disregarded for approximately 2½ years. I would simply dismiss the action without prejudice.

Weston, J.P., and Steinhardt, J., concur; Golia, J. dissents in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered July 11, 2007. The order denied plaintiff’s motion for summary judgment.

Order affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The Civil Court denied plaintiff’s motion on the ground that plaintiff’s affidavit was insufficient. This appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff’s medical billing manager was insufficient to establish that said person possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: June 08, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 18, 2007, deemed from a judgment of the same court entered May 20, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 18, 2007 order granting defendant’s motion seeking, in effect, summary judgment, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, in effect, for summary judgment dismissing the complaint. In support of its motion, defendant submitted the subject claim forms, which indicate that the billed-for services were rendered by independent contractors. Plaintiff’s opposition to the motion was based upon W-2 tax forms for the treating providers, which identified plaintiff as their employer. Plaintiff’s owner stated in an affidavit that the treating providers were employees, and that while the submitted claim forms identified them as independent contractors, it was a typographical error. The Civil Court granted defendant’s motion, finding that “the bills indicated that the services in question were performed by independent contractors.” Plaintiff appeals, arguing that it raised an issue of fact as to the employment status of its treating providers and that defendant failed to verify their employment status or to issue timely denials of the claims. A judgment was subsequently entered.

Where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the medical services rendered within the meaning of Insurance Department Regulations (11 NYCRR) § 65-3.11 (a) (see Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, 54 [App Term, 2d & 11th Jud Dists 2005]). Such a defense is [*2]nonprecludable (id.).

“[T]he claim forms at issue state that the treating professionals were independent contractors. Contrary to plaintiff’s contention, the allegation that said treating professionals were actually employees, and that the claim forms contain misinformation, is irrelevant” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70, 72 [App Term, 2d & 11th Jud Dists 2008]). As plaintiff did not submit bills that entitled it to payment, correction of the defect involved herein is not permitted once litigation has been commenced (A.M. Med. Servs., P.C., 22 Misc 3d 70). Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 08, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 11, 2008, deemed from a judgment of the same court entered March 31, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 11, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,101.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion denied.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, asserting that it had timely denied the claims on the ground that the supplies provided were not medically necessary. The Civil Court granted plaintiff’s motion, holding that defendant failed to establish that the verification requests which preceded defendant’s denials were properly issued, so that defendant’s denials were untimely. The instant appeal by defendant ensued. A judgment in favor of plaintiff was subsequently entered.

Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established the mailing of the claims in question since she stated that she had personally mailed the claims on February 10, 2005 (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. New York and Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). In addition, a review of the record indicates that plaintiff’s affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Thus, plaintiff made out its prima facie entitlement to summary judgment. [*2]

However, the Civil Court erred in finding that defendant failed to properly toll the prescribed 30-day period, since the affidavit of defendant’s no-fault litigation supervisor sufficiently established the timely mailing of the verification requests by setting forth a detailed description of the standard office practice and procedure used to ensure that the verification requests were properly addressed and mailed (see Residential Holding Corp., 286 AD2d 679). For the same reason, the affidavit also established the timely mailing of defendant’s denial of claim forms (id.).

Plaintiff contends that defendant’s opposing papers did not establish that the claim determination period was tolled because, while the affidavit of defendant’s no-fault litigation supervisor sets forth the dates on which the verification requests were mailed, the denial of claim forms set forth different dates as the dates on which final verification was requested. However, the unsworn denial of claim forms do not purport to state the dates on which defendant first requested verification, whereas, in the sworn affidavit, defendant’s no-fault litigation supervisor states the dates on which verification was first requested, the dates on which the verification was received and the dates on which the denial of claim forms were mailed. To the extent the unsworn denial of claim forms suggest that defendant may have sent a further request for verification after receiving the verification it initially sought, they do not contradict the sworn statement by defendant’s no-fault litigation supervisor or otherwise nullify defendant’s position that the claim determination period was tolled. As a result, inasmuch as the affirmed peer review report was sufficient to demonstrate the existence of an issue of fact as to the medical necessity of the supplies plaintiff furnished, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 08, 2009

Civil Court of the City of New York, Kings County

039163/07

Genine D. Edwards, J.

In this action, plaintiff seeks to recover first-party no-fault benefits from defendant in the amount of $6,040.24, for medical services allegedly provided to its assignor, Flor A. Barrietos-Mercado. Defendant now moves for summary judgment, arguing that the underlying insurance policy was retroactively cancelled and deemed void ab initio. Plaintiff has no written opposition to the motion.

BACKGROUND

Plaintiff allegedly rendered medical services to Barrietos-Mercado for injuries resulting from an automobile accident on May 2, 2001. Barrietos-Mercado assigned her no-fault benefits concerning such services to plaintiff. In turn, plaintiff submitted a bill in the amount of $6040.24 to defendant but the bill was not paid. Consequently, plaintiff commenced this action.

On or about February 25, 1999, defendant issued an insurance policy to Barrietos-Mercado. The insurance application listed Barrietos-Mercado’s residential and registration addresses as

“1402 79th Street, North Bergen, New Jersey 07047.” See Exhibit C-2. It also included the following statement:

Applicant’s Certification: I declare and certify:

1) Certify that the zip code on this application is the zip code of my residence . . . .

4) I have personally read and received a copy of this application. To the best of my knowledge and belief all statements contained in this application are true.

5) I understand that if I obtained this insurance through fraud or misrepresentation, my policy will be voided. I understand that the Assigned Company will not pay claims if the policy is voided.

Id.

After the accident, defendant conducted an investigation which revealed that “32-38 83rd Street, 1st Floor, East Elmhurst, New York 11370” was Barrietos-Mercado’s actual address. Due to the misrepresentation in the insurance application, defendant, on June 7, 2007, returned Barrietos-Mercado’s premium check and retroactively cancelled the insurance policy.

[*2]THE LAW

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. St. Claire v. Empire Gen. Contr. & Painting Corp., 33 AD3d 611, 821 NYS2d 471 (2d Dept. 2006). See also Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 (1986). The motion shall be supported by an affidavit from a person with knowledge of the facts. See CPLR 3212(b). Once the moving party satisfies these standards, the burden shifts to the adverse party to demonstrate the existence of evidence, in admissible form, sufficient to require a trial. See Katona v. Low, 226 AD2d 433, 641 NYS2d 62 (2d Dept. 1996); De Santis v. Romeo, 177 AD2d 616, 576 NYS2d 323 (2d Dept. 1991).

Retroactive cancellation of an automobile insurance policy is permitted under New Jersey law but prohibited under New York law. Compare Palisades Safety & Ins. Ass’n v. Bastien, 175 N.J. 144, 814 A.2d 619 (N.J. 2003) (policy void ab initio because insured misrepresented his marital status), and Rutgers Cas. Ins. Co. v. LaCroix, 194 N.J. 515, 946 A.2d 1027 (N.J. 2008) (“When a named insured has engaged in conduct that has resulted in the voiding of an automobile insurance policy, courts have employed the rescission remedy to deny that insured the right to claim PIP benefits under the void policy.”) with Eagle Ins. Co. v. Singletary, 279 AD2d 56, 717N.Y.S.2d 351 (2nd Dept. 2000) (“New York law does not allow retroactive cancellation.”), and A.B. Med. Servs. PLLC v. Commercial Mut. Ins. Co., 12 Misc 3d 8, 820 NYS2d 378 (App. Term, 2d Dept. 2006) (automobile insurance policy may not be retroactively cancelled on ground that insured obtained policy through fraud or misrepresentation). This conflict of law, although arising in the context of a motor vehicle accident, must be resolved by the conflict of law rules relevant to contracts, not torts. Eagle Ins. Co., 279 AD2d at 58 (citing Zurich Ins. Co. v. Shearson Lehman Hutton, Inc., 84 NY2d 309, 618 NYS2d 609 (1994)). The “center of gravity” or “grouping of contacts” inquiry determines which state has the most significant contacts with the dispute. See Careplus Med. Supply, Inc. v. Selective Ins. Co. of America, 2009 NY Slip. Op. 29109 (App. Term, 9th & 10th Jud. Dists. 2009). Generally, Courts look at the place of contracting, the place of negotiation and performance of the contract, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties to determine which state has the most significant contacts with the dispute. See id; Eagle Ins. Co., 279 AD2d at 59; Li-Ellie Service, Inc. v. AIU Ins. Co., 23 Misc 3d 1112(A), 2009 NY Slip. Op. 50719(U) (Civ. Ct. New York County 2009).

THE FINDINGS

New Jersey law applies to this action. The insurance policy involves a company doing business in New Jersey, and an individual representing at the time the contract was entered into that she is a resident of New Jersey and that the car would be garaged in that state.Thus, the validity of the making and cancellation of the contract must be determined under New Jersey law.

Under New Jersey law, no-fault benefits are unavailable when it is sought as part of an insured’s first-party claim for benefits under his or her own policy of insurance declared void because of material misrepresentations made to the insurer. Palisades Safety & Ins. Ass’n, 175 N.J. at 148. See also Remsden v. Dependable Ins. Co., 71 N.J. 587, 367 A.2d 421 (N.J. 1976); Lovett v. Alan Lazaroff & Co., 244 N.J. Super. 510, 582 A.2d 1274 (N.J. Sup. Ct. App. Div. 1990).

A misrepresentation, made in connection with an insurance policy, is material if, when made, “a reasonable insurer would have considered the misrepresented fact relevant to its [*3]concerns and important in determining its course of action. In effect, materiality [is] judged according to a test of prospective reasonable relevancy.” Longobardi v. Chubb Ins. Co. of N.J., 121 N.J. 530, 542, 582 A.2d 1257 (1990). As we have stated, “[t]he right rule of law . . . is one that provides insureds with an incentive to tell the truth. It would dilute that incentive to allow an insured to gamble that a lie will turn out to be unimportant.” Id. at 541-42, 582 A.2d 1257. Accordingly, our test for materiality “encourages applicants to be honest.” Mass. Mut. v. Manzo, 122 N.J. 104, 115, 584 A.2d 190 (1991) (explaining that misrepresentation is material if it “naturally and reasonably influence[s] the judgment of the under-writer in making the contract at all, or in estimating the degree or character of the risk, or in fixing the rate of premiums”) (citation omitted). Palisades Safety & Ins. Ass’n, 175 N.J. at 148-49.

There is no doubt that Barrietos-Mercado’s statements influenced how defendant analyzed the risk and ultimately assigned the premium associated to the insurance policy. Consequently, her statements were material misrepresentations that warranted the retroactive cancellation of Barrietos-Mercado’s insurance policy.

Plaintiff, a health-care provider, stands in the shoes of its assignor. It acquires no greater rights than that of its assignor. Lech v. State Farm Ins. Co., 335 N.J. Super. 254, 762 A.2d 269 (N.J. Super. Ct. App. Div. 2000) (“While an assignee’s rights can be no greater than those of the assignor, neither can they be any less.”); accord A.B. Med. Servs. PLLC, 12 Misc 3d at 11 (“We hold that 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.”). As a result, plaintiff may not recover first-party no-fault benefits from defendant.

Accordingly, defendant’s motion for summary judgment is granted. Plaintiff failed to demonstrate the existence of evidence, in admissible form, sufficient to require a trial. The action is dismissed.

This constitutes the decision and order of this Court.

Date: June 3, 2009________________________

Genine D. Edwards

Judge of Civil Court

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Bonnie P. Chaikin, J.), entered June 18, 2008. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing, inter
alia, that the affidavit by plaintiff’s president and medical biller failed to make a prima facie showing of plaintiff’s entitlement to judgment as a matter of law. The District Court denied plaintiff’s motion, holding, inter alia, that plaintiff failed to establish its prima facie case. This appeal by plaintiff ensued.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s president and medical biller failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment was properly denied. We reach no other issue.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: June 02, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Bonnie P. Chaikin, J.), entered June 4, 2008. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served plaintiff with various discovery demands. Thereafter, plaintiff moved
for summary judgment. In opposition to the motion, defendant argued that plaintiff did not make a prima facie showing of its entitlement to judgment as a matter of law. In addition, defendant asserted that plaintiff’s motion should be denied because plaintiff’s owner failed to appear for examinations under oath (EUOs) and because plaintiff failed to respond to defendant’s discovery demands, which sought information as to whether plaintiff was a fraudulently incorporated medical provider, and, thus, ineligible for reimbursement of no-fault benefits. The District Court denied plaintiff’s motion, holding that the affidavit by plaintiff’s billing manager failed to establish a prima facie case because it did not demonstrate that the documents annexed to plaintiff’s motion were admissible as business records. This appeal by plaintiff ensued.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment was properly denied.

We reach no other issue.

In light of the foregoing, the order is affirmed. [*2]

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: June 02, 2009