APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 4, 2007, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 4,
2007, affirmed, with $10 costs.

Although plaintiff’s claim for no-fault benefits was concededly submitted to defendant beyond the 45-day statutory period (see 11 NYCRR 65-1.1), the record shows that plaintiff’s claim submission included correspondence attempting to explain its delay in filing. Under the regulations, an insurer must not only provide a claimant the opportunity to submit a reasonable justification for any late notice (see 11 NYCRR 65-3.3[a]), but must also establish procedures to “ensure due consideration of denial of claims based upon late filings” and must give “appropriate consideration for situations where the claimant has difficulty ascertaining the insurer’s identity or inadvertently submits a claim to the incorrect insurer” (Matter of Medical Socy. of the State of New York v Serio, 100 NY2d 854, 863 [2003]). Inasmuch as the record does not indicate whether defendant gave any consideration to plaintiff’s explanation for its tardy submission as required by the regulations, we sustain the denial of defendant’s motion for summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 20, 2009

Civil Court of the City of New York, New York County

74171 CVN 2007

Attorneys for the Plaintiff

By: Michael C. Rosenberger, Esq.

Law Offices of Bryan Rothenberg

Attorneys for the Defendant

By: Kenneth F. Popper, Esq

Manuel J. Mendez, J.

Defendant AIU Insurance Company, moves for summary judgment pursuant to CPLR §3212 alleging there exists no triable issues of fact because the underlying policy was retroactively cancelled and deemed void ab initio, based on a material misrepresentation in the insurance application, pursuant to the terms of the policy and under Virgina Law. This is an action to recover no-fault benefits for services from a transportation company rendered to the assignor.

Plaintiff opposes the motion and claims that it is error to hold that a policy obtained using fraudulent misrepresentations could be void ab initio as indicated in Vehicle and Traffic Law §313. Plaintiff also claims that the defendant has not offered sufficient proof that the misrepresentation was material such that the insurer would refuse to make such a contract and [*2]provided no affidavit by an individual with personal knowledge of the investigation.

RELEVANT FACTS

Defendant issued a policy to the assignor, Jorge Garcia for a 1995 Dodge Caravan on or about April 21, 2007. At that time he listed his address as 424 Cornwallis Court, Ashland, VA 23005. The defendant claims that Jorge Garcia indicated on a residency request letter dated August 13, 2007, the car was garaged in Virginia, and that he had not changed his residency since he applied for the policy (a copy of the letter is annexed to the motion papers as part of “Exhibit E”). The policy issued contains specific language which the defendant alleges resulted in the policy being void ab initio as a result of the misrepresentations ( certified copy of the policy is annexed to the motion papers as part of “Exhibit C”).

Pursuant to its investigation of the claim regarding the accident of July 7, 2007, defendant held an Examination Under Oath and determined Jorge Garcia had been living in Bronx, New York and not Virginia at the time he signed the closing statement. The defendant cancelled the policy ab initio via letter dated October 24, 2007, with the rescission effective fifteen days from the date of receipt.

LEGAL ANALYSIS

In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Id.; Klein v. City of New York, 89 NY2d 833, 834-35 (1996) Ayotte v. Gervasio, 81 NY2d 1062, 1062 [1993], Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986) Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985), Zuckerman v. City of New York, 49 NY2d 557, 427NYS2d 595 (1980). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues. Kaufman v Silver, 90 NY2d 204, 208 [*1997]; Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533-34 (1999); Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 427 [1988]. In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party. (SSBS Realty Corp.v. Public Service Mut. Ins. Co., 253 AD2d 583, 584-85 [1st Dept. 1998]; Martin v. Briggs, 235 AD2d 192, 196 [1st Dept., 1997]).

A conflict of law dispute concerning an insurance policy is resolved by application of the conflict of law rules that apply to contracts. Matter of Integon Insurance Co.v. Garcia, 281 AD2d 480, 721 NYS2d 660 [N.Y.A.D. 2nd Dept. 2001]. The test to determine which state law governs involves the “grouping of contacts,” the state with the most significant contacts to the dispute has the law which governs the outcome of the dispute. Eagle Insurance Co. v. Singletary, 279 AD2d 480, 717 NYS2d 351 [N.Y.AD2d Dept. 2000]. It has been held that “significant contacts” regarding an insurance contract include, “the place of contracting, … the place of negotiation and performance, the location of the subject matter of the contract and the domicile or place of business of the contracting parties.” Jones v. AIG Insurance Co., 15 Misc 3d 1123(A), [*3]841 NYS2d 219 [Sup. Ct. Queens County 2007], Matter of Integon Insurance Co.v. Garcia, 281 AD2d 480, supra , and Eagle Insurance Co. v. Singletary, 279 AD2d 480, supra .

The Appellate Division, Second Department, in Eagle Insurance v. Singletary, 279 AD2d 480, supra ,in a factual situation similar to that of the instant action, determined that New York’s governmental interests needed to be balanced against the significant contacts with Virginia. In finding that Virginia law applies, the Court identified Virginia as the location where the contract of insurance was negotiated and obtained by parties doing business and expected to reside in that state and there was an expectation that the vehicle would be garaged there, so that it had the most contacts. The Court also determined this interest takes precedence over New York State’s interest in protecting innocent third parties from denial of insurance coverage.

The policy in this action involves a company doing business in Virginia and an individual representing at the time the contract was entered into in Virginia, that he was a resident of that state. There are significant contacts with Virginia so that the law of that state applies to this action.

The Virginia Code §38.2-309, titled, “When answers or statements of applicant do not bar recovery on policy,” specifically states,

“All statements, declarations and descriptions in any application for an

insurance policy shall be deemed representations and not warranties.

No statement in an application or in any affidavit made before or after

loss under the policy shall bar recovery upon a policy of insurance unless

it is clearly proved that such answer or statement was material to the risk

when assumed and was untrue.”

The Supreme Court of Virginia, has interpreted the statute to apply to insurance companies contesting a claim on the basis of an insured’s misrepresentation and developed a two part test. The insurer is required to demonstrate,

“(1) that the statement or omission on the application was untrue

and

(2) that the insurance company’s reliance on the false statement

or omission was material to the company’s decision to

undertake the risk and issue the policy.”

It is not enough to prove a falsity, the insurer is required to clearly prove that the untruthful answers would have reasonably influenced the company’s decision to issue the policy. See Commercial Underwriter’s Insurance Company v. Hunt & Calderone, P.C., 261 Va. 38, 540 S.E. 2d 491(2001) and Montgomery Mutual Ins. Co. v. Riddle, 266 Va. 539, 587 S.E. 2d 513 (2003). [*4]

The defendant provides the Examination Under Oath (EUO) transcript of Jorge Garcia,

dated September 24, 2007 (annexed as “Exhibit D” to the motion papers), as proof of the material misrepresentation. Mr. Garcia states that although he was residing in New York at the time he entered into the policy in Virginia, he only worked and lived in New York and worked in a delicatessen for part of the year, and he would return and reside in Virginia during the summer when he did construction work. (EUO Transcript at pages 37-39) . Mr. Garcia also indicates that he had inquired of the person filling out the application for his policy, if he could change the listed address and was advised that he would have to wait until some bills arrived, and that since he was planning to return to Virginia he did not change the address. He indicates he was advised that a New York policy would be more expensive but that was not a factor in his decision to keep the address listed as Virginia (EUO Transcript at pages 51-52). The defendant also annexes the affidavit of Fae Pitts, an Underwriter III by AIG Marketing Inc., (annexed to the motion papers as “Exhibit E”) she bases her knowledge on a review of the records and indicates the policy was cancelled retroactively based upon material misrepresentations. Fae Pitts does not provide sufficient details as to the reliance on the misrepresentations being material to the company’s decision to undertake the risk. There is no statement from the individual responsible for filling out the insurance application or sufficient proof to confirm or deny the statements made by Jorge Garcia regarding dual residency.

CONCLUSION

This Court finds there is a conflict of law between Virginia and New York, and Virginia law prevails. Defendant has not met its burden of proof sufficient to obtain summary judgment concerning whether the policy was void ab initio. Defendant has provided proof that Jorge Garcia provided misrepresentations on his insurance policy, but has not clearly established that it relied on those misrepresentations when it undertook the risk or that truthful answers would have influenced the insurer’s decision to issue a policy. It is unclear based on the EUO testimony of Jorge Garcia, whether the individual responsible for preparing the application on behalf of the defendant was aware of the misrepresentations and continued have the policy issued. The defendant has not met its burden of proof, there is no need to address the deficiencies in the plaintiff’s papers.

Accordingly, for the foregoing reasons the defendant’s motion for summary judgment is denied.

The foregoing shall constitute the Decision and Order of the Court.

Dated: April 20, 2009

Manuel J. Mendez

Judge, Civil Court

[*1]

Supreme Court, Appellate Term, Second Department, April 20, 2009

APPEARANCES OF COUNSEL

Rivkin Radler LLP, Uniondale (Evan H. Krinick, Cheryl F. Korman, Stuart M. Bodoff and Melissa M. Murphy of counsel), for appellant.

{**23 Misc 3d at 43} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, reversed without costs, defendant’s cross motion for leave to amend its answer and, upon such amendment, for summary judgment dismissing the complaint granted, and complaint dismissed.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered, plaintiff moved for summary judgment. Defendant cross-moved for leave to amend its answer to assert the affirmative defense of collateral estoppel, and, upon such amendment, for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and defendant’s cross motion. Defendant appeals from so much of the order as denied its cross motion.

Generally, leave to amend a pleading pursuant to CPLR 3025 (b) should be granted where there is no significant prejudice or surprise to the opposing party and where the proof submitted in support of the motion indicates that the cause of action or defense to be{**23 Misc 3d at 44} asserted in the amendment may have merit (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; Ingrami v Rovner, 45 AD3d 806, 808 [2007]). The court must examine the merits of the cause of action or defense to be asserted in the proposed amendment since leave to amend should not be granted where the cause of action or defense to be asserted is totally without merit or is palpably insufficient as a matter of law (see Ingrami, 45 AD3d at 808; Hill v 2016 Realty Assoc., 42 AD3d 432, 433 [2007]). [*2]

Defendant sought leave to amend its answer in order to interpose the affirmative defense of collateral estoppel because there was a prior arbitration proceeding between the parties in which plaintiff had sought to recover assigned first-party no-fault benefits for services rendered to a different assignor. In said proceeding, the arbitrator determined that plaintiff was ineligible to receive reimbursement of no-fault benefits because it was a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]). Inasmuch as plaintiff failed to demonstrate that prejudice or surprise would result from allowing the proposed amendment (see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]), and the proposed affirmative defense was neither devoid of merit nor palpably insufficient as a matter of law (see Ingrami, 45 AD3d at 808; Hill, 42 AD3d at 433), defendant should have been granted leave to amend its answer (see Ingrami, 45 AD3d at 808 [a defendant who has failed to assert a defense set forth in CPLR 3211 (a) (5) both in a motion to dismiss and an answer (see CPLR 3211 [e]) may nonetheless be granted leave to amend the answer to assert such defense under appropriate circumstances]).

“The two elements that must be satisfied to invoke the doctrine of collateral estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue (see Kaufman v Lilly & Co. [65 NY2d 449,] at 455)” (Luscher v Arrua, 21 AD3d 1005, 1007 [2005]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]).

“The burden is on the party attempting to defeat the application of collateral estoppel to establish the absence of a full and fair opportunity to litigate” (D’Arata, 76 NY2d at 664; see also Kaufman, 65 NY2d at 456).

Collateral estoppel effect can, under appropriate circumstances, be given to arbitration awards (see Matter of American Ins. Co. [Messinger—Aetna Cas. & Sur. Co.], 43 NY2d 184 [1977]). Where a plaintiff has freely elected to proceed to arbitration with the assistance of counsel despite the availability{**23 Misc 3d at 45} of an alternate judicial forum and has had the opportunity to employ procedures substantially similar to those utilized in a court of law, it may be found that the plaintiff has had a full and fair opportunity to litigate the issue determined in the arbitration proceeding (Clemens v Apple, 65 NY2d 746 [1985]).

In the instant matter, defendant established that the issue of whether plaintiff was ineligible to receive reimbursement of no-fault benefits because it was a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d at 322) was identical to the issue previously decided by the arbitrator. In opposition to defendant’s cross motion, plaintiff failed to address the branch of the cross motion which sought summary judgment dismissing the complaint on the ground of collateral estoppel. Therefore, plaintiff failed to establish that it did not receive a full and fair opportunity to litigate in the arbitration proceeding. Thus, the branch of defendant’s cross motion seeking summary judgment should have been granted (see Uptodate Med. Serv., P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 128[A], 2009 NY Slip Op 50046[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is reversed, defendant’s cross motion for leave to amend its answer, and, upon such amendment, for summary judgment dismissing the complaint is granted, and the complaint is dismissed.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.

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 (Ellen M. Spodek, J.), entered June 8, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment, asserting that, based on a peer review report, it timely denied plaintiff’s claim on the ground that the supplies provided were not medically necessary. The Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, holding, inter alia, that defendant established its defense of lack of medical necessity based on a peer review report and plaintiff proffered no evidence in opposition thereto showing that the supplies provided were in fact medically necessary. Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion.

Contrary to plaintiff’s contention, the denial of claim form submitted by defendant, which included a defense of lack of medical necessity as per a peer review report, was not fatally defective. Although defendant omitted certain sections from the denial of claim form, the sections were not relevant to the instant claim. The denial of claim form promptly apprise[d] the claimant with a high degree of specificity of the ground . . . on which the disclaimer [wa]s predicated . . .” (New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006] [internal quotations and citation omitted]), and defendant established that said denial of claim form was approved by the New York State Department of Insurance (id.; see also All Borough Group Med. Supply, Inc. v GEICO Ins. Co., 20 Misc 3d 130[A], 2008 NY Slip Op [*2]51417[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant’s defense of lack of medical necessity was not precluded.

Defendant’s cross motion papers, including the affirmed peer review report, established prima facie that there was no medical necessity for the supplies provided by plaintiff, which evidence was unrebutted. As a result, the Civil Court properly granted defendant’s cross motion for summary judgment (see 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 N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff’s remaining contentions were improperly raised for the first time on appeal and, in any event, lack merit. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: April 16, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a decision of the Civil Court of the City of New York, Queens County (Anna Culley, J.), dated November 2, 2005, deemed from a judgment of the same court entered December 21, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, prior to trial, that plaintiff proved its prima facie case, and that defendant’s requests for verification and denial of claim forms were all mailed on the days which they were dated. The sole issue at trial was the medical necessity of the supplies which were provided to the assignor. Defendant’s expert medical witness, who had performed a peer review on defendant’s behalf, testified that the durable goods which were provided to plaintiff’s assignor were not medically necessary. In a decision dated November 2, 2005, the Civil Court found in favor of defendant and dismissed the complaint. This appeal by plaintiff ensued. A judgment was subsequently entered.

“A decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence” (Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [2004]). The testimony of defendant’s peer review doctor, which the trial court credited, established that there was a lack of medical necessity for the supplies issued to plaintiff’s assignor. Inasmuch as plaintiff failed to offer any rebuttal evidence to show that the supplies were medically necessary, we find that the trial court’s determination was based on a fair interpretation of the evidence. Accordingly, the judgment dismissing the complaint is affirmed. [*2]

Weston Patterson, J.P., Golia and Rios, JJ., concur.

Decision Date: April 16, 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, Kings County (Bernard J. Graham, J.), entered October 11, 2007. The order granted defendant’s motion for summary judgment dismissing the complaint.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that neither its insured nor its insured’s vehicle was involved in the subject hit-and-run
accident, which allegedly occurred in Brooklyn, New York. In support of its motion, defendant annexed affidavits from its insured and its insured’s wife in which they stated that although they own a 1995 Oldsmobile, they live in Fredonia, New York and neither they nor their vehicle was involved in an accident in Brooklyn. They further stated that they are the only individuals who have access to their vehicle and that they have not been to Brooklyn in over 30 years. In opposition to the motion, plaintiff proffered only an affirmation from its attorney in which he argued that defendant’s papers did not make a prima facie showing entitling it to summary judgment. The Civil Court granted defendant’s motion, and the instant appeal by plaintiff ensued.

We find that defendant made a prima facie showing that its insured’s vehicle was not involved in the hit-and-run accident in which plaintiff’s assignor was allegedly injured. Consequently, to defeat defendant’s motion for summary judgment, plaintiff had to set forth facts sufficient to demonstrate a triable issue of fact (see Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065 [1979]). Since plaintiff failed to do
so, the Civil Court properly granted defendant’s motion for summary judgment dismissing the [*2]complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: April 16, 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, Kings County (Bernard J. Graham, J.), entered January 17, 2007, deemed from a judgment of the same court entered April 4, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 17, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $815.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that it timely denied plaintiff’s claim on the ground of lack of medical necessity. The Civil Court granted plaintiff’s motion, finding that plaintiff had established a prima facie case and that defendant had failed to raise a triable issue of fact. This appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass on the propriety of the Civil Court’s determination with respect thereto.

The affidavit submitted by defendant’s claims employee was sufficient to establish that defendant’s denial of claim form, which denied plaintiff’s claim based upon a peer review report, was timely mailed in accordance with defendant’s standard office practice and procedure (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]). In opposition to plaintiff’s motion for summary judgment, defendant annexed an affirmed peer [*2]review report, which set forth the physician’s opinion that the medical supplies at issue were medically unnecessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists2007]).

Plaintiff’s contention that the peer review report was inadmissible since it contained a stamped facsimile of the doctor’s signature, raised for the first time on appeal, was waived (see Dowling v Mosey, 32 AD3d 1190 [2006]; Alur Med. Supply, Inc. v GEICO Ins. Co., 20 Misc 3d 145[A], 2008 NY Slip Op 51867[U] [App Term, 2d & 11th Jud Dists 2008]; cf. Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]; Support Billing & Mgt. Co. v Allstate Ins. Co., 15 Misc 3d 126[A], 2007 NY Slip Op 50496[U] [App Term, 2d & 11th Jud Dists 2007]).

Consequently, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views. In particular, I wish to note that, as stated in my dissenting opinion in Uptodate Med. Serv., P.C. v Lumbermens Mut. Cas. Co. (20 Misc 3d 135[A], 2008 NY Slip Op 51501[U] [App Term, 2d & 11th Jud Dists 2008]), an appellate court “should always consider the issue of whether a prima facie showing has been made, irrespective of whether the issue was raised by the defendant” (see also Alvarez v Prospect Hospital, 68 NY2d 320 [1986]).
Decision Date: April 16, 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 3, 2008, deemed from a judgment of the same court entered January 25, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 3, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,284.78.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that the
supplies plaintiff provided were not medically necessary. The Civil Court granted plaintiff’s motion for summary judgment, finding that defendant was precluded from asserting its defense since it failed to establish that the statutory time period in which it had to pay or deny plaintiff’s claim was tolled, as its follow-up verification request was sent prior to the expiration of the 30-day period within which the requested verification had to be provided. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal regarding plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass on the propriety of the implicit determination of the Civil Court with respect thereto.

Since defendant’s papers established that it mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Infinity Health Prods., Ltd. [*2]
v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]). Consequently,
defendant failed to timely deny plaintiff’s claim and is precluded from raising most defenses, including its proffered defense of lack of medical necessity (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Accordingly, the Civil Court properly granted plaintiff’s motion for summary judgment, and the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: April 07, 2009

District Court of Nassau County, First District

8153/08

Plaintiff: Friedman, Harfenist, Kraut & Perlstein, Esqs.

Defendant: DeMartini & Yi, LLP

Fred J. Hirsh, J.

Defendant Progressive Casualty Insurance Company (“Progressive”) moves for summary judgment. Plaintiff Elmont Open MRI & Diagnostic Radiology, P.C. (“Elmont”) cross-moves for summary judgment.

BACKGROUND

Andrea Henry (“Henry”) was injured in an automobile accident that occurred on October 16, 2007. Her treating doctor prescribed MRI’s of the cervical, thoracic and lumbar spines.

The MRI of the lumbar spine was performed by Elmont on November 24, 2007. The MRI’s of the cervical and thoracic spines were performed by Elmont on December 27, 2007.

Henry assigned her right to receive no-fault benefits for the MRI’s to Elmont.

Elmont submitted the bills for the MRI’s to Progressive, the insurance carrier that provided no-fault benefits for Henry. Progressive received the bill for the MRI of the cervical spine on December 26, 2007 and the bill for the MRI’s of the cervical and thoracic spine on January 11, 2008.

Progressive claims it denied the bill for the lumbar MRI by denial dated January 18, 2008. Progressive claims it denied the bill for the cervical and thoracic MRI’s by denial dated February 1, 2008.

The denial of benefits was based upon the peer review report of Harvey Goldberg, M.D. (“Dr. Goldberg”).

Progressive asserts the peer review report of Dr. Goldberg establishes the MRI’s were not medically necessary. Progressive further asserts the affidavit of Christopher R. Kenny (“Kenny”) establishes Progressive’s office procedures for preparing, addressing and mailing denials of claims. The Kenny affidavit purports to establish [*2]Progressive had established a procedure to ensure proper and timely mailing of denials.

Elmont asserts Dr. Goldberg’s peer review reports are inadequate to entitle Progressive to judgment as a matter of law. They further assert the Kenny affidavit does not establish the denials were timely mailed.

Elmont cross-moves for summary judgment. Elmont establishes it timely filed the claim. The timely filing of the claim is based upon the affidavit of Brijukmar Yamraj (“Yamraj”) Elmont’ s medical billing collection supervisor and Progressive’s NF-10. the Denial of Claim form .

Elmont performed the MRI of Henry’s lumbar spine on November 24, 2007. The bill for this MRI is dated November 29, 2007. Progressive acknowledges receipt of this bill on December 26, 2007.

Elmont performed the MRI’s of Henry’s thoracic and cervical spine on December 12, 2007. The bill is dated December 20, 2007. Progressive acknowledges receipt of this bill on January 11, 2008.

Elmont asserts this establishes the claims were received by Progressive within 45 days of the date services were rendered. 11 NYCRR 65-1.1. Progressive admits it has not paid the bills. Elmont claims the timely submission of the bills coupled with Progressive’s failure to pay within 30 days establishes its entitlement to summary judgment.

DISCUSSION

A no-fault insurer who denies a claim on the basis of lack of medical necessity must establish that the services were inconsistent with generally accepted medical practices. The opinion of the insurer’s expert standing alone is insufficient to establish that the tests were not medically necessary. Delta Medical Supplies, Inc. v. NY Central Mutual Ins. Co., 14 Misc 3d 1231(A) (Civil Ct. Kings Co. 2007); and CityWide Social Work & Psychological Servs. V. Travelers Indem. Co., 3 Misc 3d 608 (Civil Ct. Kings Co. 2004).

Dr. Goldberg’s peer review reports are inadequate as a matter of law to establish lack of medical necessity. Dr. Goldberg’s peer review report regarding the MRI of the lumbar spine does not state an opinion as to the medical necessity of this MRI. Dr. Goldberg does not state in his report he is familiar with the practices and procedures in the field. He adopts an opinion contained in Current Medical Diagnosis and Treatment, 42nd Ed. (“CMDT”). The court is not provided with a copy of the sections of CMDT upon which Dr. Goldberg relies.

Dr .Goldberg never states in his peer review report that he is familiar with generally accepted medical practices regarding the prescribing of a lumbar MRI, what those practices are and how or why ordering of a lumbar MRI when it was ordered departed from those practices.

Similarly, Dr. Goldberg’s peer review report regarding the cervical and thoracic spine is inadequate. He again adopts the opinion of CMDT without stating what that opinion is. He fails to states that he is familiar with the generally accepted medical practices and procedures regarding the ordering of thoracic and/or cervical MRI’s, what those standards are, the basis of those standards and/or how or why the MRI’s ordered [*3]and performed of Henry’s cervical and thoracic spine by Elmont were not in accordance with those practices and procedures.

This problem is compounded by the statement contained in Dr. Goldberg’s report that “I would be unable to certify the medical necessity for MRI studies of the cervical spine and thoracic spine planned on 11/29/2007.” The issue is not whether Dr. Goldberg would order those tests. In determining whether a test is medically necessary, the question is whether the tests or procedures are in accordance with generally accepted medical practices, not whether the peer review doctor’s personal opinion is the tests are not medical necessary. Id. and Nir v. Allstate Insurance Co., 7 Misc 3d 544 (Civil Ct. Kings Co. 2005).

The peer review doctor’s must establish a familiarity with generally accepted practice, must establish what generally accepted practice is under the circumstances and must state the questioned treatment was not in accordance with generally accepted medical practice. Williamsbridge Radiology & Open Imaging .v Travelers Indemnity Co., 14 Misc 3d 1231(A) (Civil Ct. Kings Co. 2007).

Before an expert witness is permitted to offer an opinion, the witness must be qualified as an expert. Price v. New York City Housing Auth., 92 NY2d 553 (1998); Caprara v. Chrysler Corp., 52 NY2d 114, rearg. dnd. 52 NY2d 1073 (1981); and Meiselman v. Crown Heights Hospital, 285 NY 389 (1941). To qualify as an expert, the witness must possess “…the requisite skill, training, education, knowledge or experienced from which it can be assumed that the information imparted or the opinion rendered is reliable (citations omitted).” Matott v. Ward, 48 NY2d 455, 460 (1979); and de Hernandez v. Lutheran Medical Center, 46 AD3d 517 (2nd Dept. 2007). Progressive fails to establish Dr. Goldberg is an expert. Progressive does not submit an affidavit or affirmation from Dr. Goldberg. Progressive relies upon the peer review report which is affirmed. The peer review report does not contain any information about Dr. Goldberg’s education, training or professional experience. Since Dr. Goldberg has not been qualified as an expert, the court cannot accept his opinion regarding the lack of medical necessity for the cervical, thoracic and lumbar MRI’s.

Dr. Goldberg’s peer review states the MRI of the lumbar spine “…has not been established as medically necessary.”This misstates the burden of proof. Plaintiff proves a prima facie case of medical necessity by submitting proof in evidentiary form the statutorily prescribed forms were timely mailed and received, and the no-fault benefits were nottimely paid. Globe Surgical Supply v. Geico Ins. Co., 59 AD3d 129 (2nd Dept. 2008); and Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004). Once plaintiff has met this burden, the burden of proof shifts to the defendant to establish the test or treatment were not medically necessary. A Plus Medical P.C. v. Government Employees Ins. Co., 21 Misc 3d 799 (Civil Ct. Kings Co. 2008). Dr. Goldberg’s report does not meet the defendant’s burden.

Since the peer review reports of Dr. Goldberg are inadequate to establish a prima facie entitlement to judgment as a matter of law, defendant’s motion for summary judgment is denied. Widmaier v. Master Products, Mfg, 9 AD3d 362 (2nd Dept. 2004); and Ron v. New York City Housing Auth., 262 AD2d 76 (1st Dept. 1999).

Elmont has established the statutorily prescribed claim forms were received by Progressive within 45 days of the ay upon which the services were rendered. [*4]Progressive has failed to pay the bills. This Elmont has established a prima facie case that the treatment it provided was medically necessary. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 556 (2008); and Hospital for Joint Diseases v. Travelers Property Casualty Ins. Co., 9 NY3d 312 (2007)

Progressive claims it timely denied these claims based upon an affidavit of Christopher R. Kenny (“Kenny”). Kenny was not the Progressive claims representative who issued or mailed the denial. The denial of claims forms were issued by David Karhan (“Karhan”).

A no-fault insurance carrier may prove timely mailing of a denial by submitting an affidavit made by the person who actually prepared and mailed the denial attesting to the preparation and mailing of the denial or by submitting an affidavit from an employee with knowledge of its office practice or procedures designed to ensure the denial was timely generated, addressed and mailed and those procedures were followed in connection with the notice involving plaintiff’s claim. St. Vincent’s Hosp. of Richmond v. Government Employees Ins. Co., 50 AD3d 1123 (2nd Dept. 2008). However, the court did not indicate precisely what must be stated in the affidavit to establish the office practices and procedures were designed to ensure the denial was timely generated, addressed and mailed.

Ideally such an affidavit would be made by the person who prepared the denial notice and would state (1) the affiant prepared the denial notice, (2) put the denial notice in the envelope, (3) checked to determine it was properly addressed, (4) stamped the envelope and (5) deposited the stamped envelope in a mail box. An affidavit made by the person who performed the first three elements and then deposited the envelope in the office outgoing mail together with a statement of familiarity with the procedures used to stamp and mail the items placed in the outgoing mail is sufficient to establish due and timely mailing. Lenox Hill Radiology v. Global Liberty Ins., 20 Misc 3d 434 (Civil Ct. NY Co. 2008).

An insurance carrier could meet the requirement of establishing due and timely mailing by attaching an affidavit of mailing to the office copy of the denial notice.^[FN1]

An insurance carrier could meet the requirement of proving due and timely mailing by mailing the denial notice with a certificate of mailing ^[FN2] or by mailing the denial [*5]notice by certified or registered mail, return receipt requested.^[FN3]

The requirement could be met if the medical provider acknowledges or admits the denial notice was timely mailed. This could be accomplished by taking a deposition of the plaintiff (CPLR 3107) at which the plaintiff’s witness could be asked if the Notice of Denial, NF-10 was received and if so, when was it received. Similar information could be obtained through interrogatories in which the plaintiff could be asked if it received the Notice of Denial, NF-10 and the date the NF-10 was received. CPLR 3130.

An insurance carrier could also meet the requirement by having the claims representative prepare as part of the claims processing procedure a log indicating the date the claim was received, the action taken on the claim and the date the payment, the demand for verification or the Notice of Denial, NF-10 was prepared and mailed. Such a record or log could, with proper foundation, be established as a business record. CPLR 4518(a).

Problems arise when the affidavit attesting to the preparation and mailing of the denial notice is made by a claims supervisor who has no personal knowledge of how or when the Notice of Denial, NF-10 was prepared or mailed. That is the situation in this case. The only fact Kenny’s affidavit can actually attest to is that he has reviewed the office file and found a Denial of Claim, NF-10 for the lumbar spine dated 1/18/08 and a Denial of Claim, NF-10 for the thoracic and cervical spine dated 2/1/08 in the file. Kenny has no first hand knowledge as to whether they were actually prepared on the date stated on the NF-10. The confusion as to the date these NF-10’s were actually prepared is compounded by a stamp on the NF-10 for the lumbar spine “Entered by ACL 0006 Jan. 21, 2008” and a stamp on the NF-10 for the thoracic and cervical spine “Entered by SXGD 154 Feb. 4, 2008”.

While evidence of habit or custom and practice may be admitted to establish that a person performed a certain act, the person must establish the habit or custom and practice is “…a deliberate and repetitive practice” by a person”in complete control of the circumstances.” (Citation omitted) as opposed to “conduct however frequent yet likely to vary from time to time depending upon the surround circumstance” (citation omitted).” Rivera v. Anilesh, 8 NY3d 627, 632 citing Halloran v. Virginia Chemicals Inc., 41 NY2d 386 (1977). Before a person can testify regarding whether a person actions constitute habit or custom and practice, the person offering evidence establishing they are familiar with that person’s habits. Halloran v. Virginia Chemicals, Inc., supra; and Beakes v. DaCunha, 126 NY 293 (1891) (plaintiff was permitted to testify it was his practice to be home on a specific day each month to transact business.). Kenny’s affidavit does not establish he was familiar with Karhan’s practices and procedures in preparing, dating or mailing Denial of Claim, NF-10’s. Kenny’s affidavit does not even state Karhan was advised of or familiar with Progressive’s company practices procedures regarding the preparation, addressing and mailing of NF-10’s. Essentially, the court is being asked [*6]to assume Karhan prepared and timely mailed the NF-10’s because they are in Progressive’s file and are dated within the 30 day period in which the carrier has to pay or deny a claim. 11 NYCRR 65-3.8.

The No-Fault Law and Regulations presents unique issues regarding timely mailing. The no-fault insurance carrier has 30 days from the date of receipt of a claim or verification of the claim to pay or deny a claim in whole or in part. 11 NYCRR 65-3.8. A no-fault insurance carrier who fails to deny a claim within 30 days is precluded from asserting most defenses to the claim. Fair Price Medical Supply Corp. v. Travelers Indemnity, Co., supra; and Hospital for Joint Diseases v. Travelers Property Casualty Ins. Co., supra.^[FN4] Therefore, proof of timely mailing of the denial is critical to the defense of lack of medical necessity. Progressive would be precluded from raising this defense unless it proves timely mailing of the denial of claims to Elmont. Careplus Medical Supply, Inc. v. Selective Ins. Co. of America, -Misc.3d-, 2009 WL 679251 (App.Term 9th & 10th Jud. Distrs. 2009).

The proof in this case is insufficient to establish proof of timely mailing. Kenny’s review of Progressive’s file establishes a copy of the NF-10 was in the file.

Progressive does not even state the reason why it did not submit an affidavit from Karhan, the person with actual first hand knowledge of the preparation and mailing of the NF-10.

The oft stated purpose of the No-fault law is “…to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists.” Medical Society of the State of New York v. Serio, 100 NY2d 854, 860 (2003). See, Fair Price Medical Supply Corp. v. Travelers Indemnity Co., supra; and Hospital for Joint Disease v. Travelers Property Casualty Ins. Co., supra.

This court does not believe the stated purpose of the No-fault law is served by permitting the no-fault carrier to defeat a claim by submitting an affidavit by someone who lacks personal knowledge of the facts regarding the preparation and mailing of the Denial of Claim who assumes that because the NF-10 is in the office file and is dated before the 30 day period for paying or denying a claim has expired that the NF-10 was prepared and mailed timely.

This Court believes St. Vincent’s requires that if the no-fault insurance carrier cannot present an affidavit made by the person who actually prepared the NF-10 the [*7]affidavit should state: (1) why an affidavit cannot be obtained from the person who actually prepared and/or posted the NF-10 for mailing, (2) the company policy and procedures for preparing, addressing and mailing an NF-10 in effect at the time the NF-10 was prepared and mailed, (3) the claims representative who issued the NF-10 was aware of and advised to comply with company policy regarding the preparation and mailing of these forms, (4) the person making the affidavit knows the person who prepared the NF-10 was aware of company policy, (5) the person making the affidavit was aware that the claims representative who prepared the NF-10 had the habit of complying with company policy and (6) the basis of the person who makes the affidavit’s knowledge.

Kenny’s affidavit does not contain any of this information other than Progressive’s policy regarding the issuance and mailing of Denial of Claims. It does not establish Karhan was aware of this policy or complied therewith. .

Elmont’s papers establish an entitlement to judgment as a matter of law. The Yamraj affidavit establishes Elmont’s practices and procedures regarding the preparation and mailing of bills. Furthermore, Progressive’s NF-10’s indicate the bills were received within 45 days of the date the services were provided. Progressive admits they did not pay these bills.

.The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. Winegrad v. New York University Medical Center, 64 NY2d 851 (1985); and Zuckerman v. City of New York, 49 NY2d 557 (1980). Once the party seeking summary judgment has made a prima facie showing of entitlement to judgment as a matter of law, the party opposing the motion must come forward with proof establishing the existence of triable issues of fact or must demonstrate an acceptable excuse for its failure to do so. Zuckerman v. City of New York, supra; and Davenport v. County of Nassau, 279 AD2d 497 (2nd Dept., 2001); and Bras v. Atlas Construction Corp., 166 AD2d 401 (2nd Dept., 1991). Elmont has made a showing of entitlement to a judgment as a matter of law. Progressive has not.

For the foregoing reasons, defendant’s motion for summary judgment is denied. Plaintiff’s cross-motion for summary judgment is granted. The clerk is directed to enter judgment in favor of the plaintiff and against the defendant in the sum of $2751.34 together with interest in accordance with the No-Fault Regulations and legal fees in accordance with 11 NYCRR 4.6 together with costs and disbursements as taxed by the clerk.

Submit judgment.

So Ordered:

Hon. Fred J. Hirsh

District Court Judge

Dated: April 6, 2009

cc:DeMartini & Yi, LLP

Friedman, Harfenist, Kraut & Perlstein [*8]

Footnotes

Footnote 1:The affidavit of mailing would be similar to and serve the same function as the affidavit of service attached to legal papers served in accordance with CPLR 2103. See, CPLR 2103(f)(1).

Footnote 2:A Certificate of Mailing is document issued by the United States Postal Serivce evidencing that a piece of mail has been delivered to the Postal Service for mailing. The Certificate of Mailing indicates the date the item was mailed. See, United States Postal Service, Domestic Mail Manual, Section 503 – Extra Services 5.0 et. seq. Certificate of Mailing.

Footnote 3:The certified or registered mail receipt would reflect the date the notice was mailed. The return receipt would reflect the date the item was received by the addressee. See, United States Postal Service, Domestic Mail Manual, Section 503 Extra Services – 2.0 et. seq. Registered Mail and 3.0 et. seq. Certified Mail and 6.0 et. seq. Return Receipt.

Footnote 4:The Fair Price case points out the substantial and dire consequences to an insurance carrier who fails to timely deny a claim. Travelers was precluded from asserting a defense of fraud which might rise to the level of penal insurance fraud (See, Penal Law §176.00 et seq.) because the claim was not timely denied. The only defense that are not precluded as a result of an insurance carriers failure to timely deny a claim are lack of coverage [Central General Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195 (1997)], fraudulent incorporation. [State Farm Mutual Ins. Co. v. Malella, 4 NY3d 313 (2005)], and staged accident [Central General Hosp. v. Chubb Group of Ins. Cos., supra; Allstate Ins. Co. v. Massre, 14 AD3d 610 (2nd Dept. 2005); and V.S. Medical Services P.C. v. Allstate Ins. Co., 11 Misc 3d 334 (Civil Ct. Kings Co. 2006)].

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 February 26, 2008, deemed from a judgment of the same court entered April 11, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 26, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $223.50.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that there was an issue of fact as to the medical necessity of the supplies. The Civil Court granted plaintiff’s motion for summary judgment, finding that defendant had failed to demonstrate the timely mailing of its requests for verification and its denial of the claim. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Plaintiff established its prima facie entitlement to summary judgment by proof that it submitted the claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). We note that the affidavit submitted by plaintiff’s billing manager demonstrated that the annexed claim form 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]). Any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim form was cured by defendant’s claim denial form and the affidavit of defendant’s no-fault supervisor in which receipt of the claim in question was conceded (see [*2]Crossbridge Diagnostic Radiology, P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51761[U] [App Term, 2d & 11th Jud Dists 2008]; East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]). In addition, contrary to defendant’s contention, a “provider is not required to prove its costs to establish its prima facie case for the recovery of no-fault benefits” (Infinity Health Prods. Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]). Consequently, the burden shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant, through the submission of the affidavit of its no-fault supervisor and the affirmed peer review, established that plaintiff’s claim was properly and timely denied based upon a lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; 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]). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

We reach no other issue.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: April 03, 2009