SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal, as limited by the brief, from so much of an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered April 14, 2006, as granted plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment, deemed an appeal from a judgment entered May 30, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 14, 2006 order, awarded plaintiff the principal sum of $1,146.80.

Judgment affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment upon the six claims it submitted to defendant was granted to the extent of awarding plaintiff summary judgment upon five of the claims which totaled $1,146.80. After defendant filed its notice of appeal, a judgment was entered upon these five claims. Pursuant to CPLR 5501 (c), we deem defendant’s appeal to be from the judgment.

Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto. In opposition to plaintiff’s motion for summary judgment, defendant submitted, inter alia, an accident analysis report accompanied by an affidavit of the technical consultant/accident reconstructionist who prepared the report in an attempt to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s [*2]assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since the affidavit proffered by defendant did not comply with CPLR 2309 (c), which fact was duly objected to by plaintiff in the court below, the affidavit was not in admissible form (see CPLR 2309 [c]; Bath Med. Supply, Inc. v Allstate Indem. Co., 13 Misc 3d 142[A], 2006 NY Slip Op 52273[U] [App Term, 2d & 11th Jud Dists]; see also Jenkins v Diamond, 308 AD2d 510 [2003], citing Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]). Consequently, defendant failed to introduce competent evidence establishing that it possessed a founded belief that the alleged injuries did not arise out of an insured incident (see Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists]; cf. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 131[A], 2006 NY Slip Op 51051[U] [App Term, 2d & 11th Jud Dists]).

Defendant’s constitutional challenge to CPLR 2309 (c) is not reviewable as defendant failed to give the requisite statutory notice to the Attorney General (see Executive Law § 71; CPLR 1012; Estate of Marone v Chaves, 306 AD2d 372 [2003]; Matter of Lee P.S. v Lisa L., 301 AD2d 606 [2003]; Robert Fiance Hair Design Inst. v Concourse Props. Co., 130 AD2d 564 [1987]).

To the extent plaintiff requests that we search the record and award it summary judgment upon its remaining claim for $473.20, plaintiff’s entitlement to summary judgment upon this claim is not before us since said claim is not brought up for review on defendant’s appeal from the judgment, and plaintiff did not appeal from so much of
the order as denied its motion for summary judgment upon such claim (see CPLR 5501 [a] [1]).

In light of the foregoing, the judgment is affirmed.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered April 6, 2006. The judgment denied the petition to vacate the master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claim for assigned first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award.
However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered April 6, 2006. The judgment denied the petition to vacate the master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claim for assigned first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award.
However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered March 1, 2006. The judgment denied the petition to vacate the master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed with $25 costs.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claims for assigned first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered February 10, 2005. 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. The court below denied the motion and the instant appeal ensued.

On appeal, defendant asserts that the affidavit of plaintiff’s employee, submitted in support of the motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s employee was insufficient to establish that said employee 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. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins., Co., 14 Misc 3d 135[A], 2007 NY Slip Op
50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). [*2]

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007

—[*1] McDonnell & Adels, P.C., Garden City, N.Y. (Todd Hellman of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical payments under certain insurance contracts, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Peck, J.), dated December 28, 2004, as granted those branches of the plaintiff’s motion which were for summary judgment on the causes of action to recover no-fault medical payments allegedly due to Mary Immaculate Hospital as assignee of Yvette Coley and Khayyam Jackson.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff’s motion which were for summary judgment on the causes of action to recover no-fault medical payments allegedly due to Mary Immaculate Hospital as assignee of Yvette Coley and Khayyam Jackson are denied.

Viewing the evidence in the light most favorable to the nonmoving party (see Gonzalez v Metropolitan Life Ins. Co., 269 AD2d 495, 496 [2000]), we conclude that the plaintiff, Mary Immaculate Hospital (hereinafter the Hospital), failed, in support of its motion for summary judgment, to tender sufficient evidence in admissible form eliminating any triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; cf. Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354, 355-356 [2004]). The Hospital submitted affidavits in which a billing service representative averred that she had “billed” the defendant Allstate Insurance Company (hereinafter Allstate) “with a form N-F5 and UB92 for the sum of” $3606.93 and[*2]$2069.12, respectively. The evidence submitted in support of the motion, however, did not establish that the billing representative, or anyone else, mailed to Allstate those documents related to the claims for treatment rendered to Yvette Coley and Khayyam Jackson (cf. Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). The certified mail receipts submitted in support of the motion did not establish that those mailings contained the documents relating to those patients.

Since the Hospital failed to establish prima facie that it was entitled to judgment as a matter of law, it is unnecessary to consider the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]).

Allstate’s remaining contention is without merit. Crane, J.P., Mastro, Rivera and Spolzino, JJ., concur.

Supreme Court, New York County

114851/06

Marylin G. Diamond, J.

Background

On or around March 3, 2006, defendants Francisco Martinez and Miguel Sanchez were involved in an automobile accident while occupants of a vehicle owned by nonparty Rafael Grullon. At the time of the accident, Grullon was insured by plaintiff Unitrin Advantage Insurance Company. Sanchez and Martinez were eligible to claim no-fault benefits under the Grullon policy. On or around March 13, 2006, April 10, 2006 and May 15, 2006, defendant Dr. Jean Miller, an osteopathic specialist, referred Sanchez and Martinez to defendant Andrew Carothers, M.D., P.C. (“Carothers”) for MRI’s. Sanchez and Martinez later appeared at Carothers for an MRI and assigned their claims for no-fault benefits over to Carothers. Carothers subsequently submitted claims for payment for the MRI’s to Unitrin.

Between May 8, 2006 and August 21, 2006, Unitrin informed Carothers, in eight separate articles of correspondence, that a determination on its claims had been delayed because it wished to conduct an examination under oath (“EUO”) of Dr. Carothers in order to determine whether the treatment was medically necessary. However, on June 29, 2006, in the absence of an EUO, Unitrin denied Carothers’ claim for the March 17, 2006 MRI of Sanchez’s knee on the ground that the MRI was not medically necessary. Unitrin did not deny Carothers’ claim for Sanchez’s April 28, 2006 MRI or render any determination regarding the claim for Martinez’s MRI’s.

On July 21, 2006, Unitrin’s counsel sent a demand for an EUO to Carothers regarding both the Sanchez and Martinez claims. On August 9, 2006, Dr. Carothers offered to appear for an EUO, [*2]provided that Unitrin reimburse him for his lost wages and transportation costs. It does not appear that Unitrin ever formally responded to this demand. Rather, it scheduled an EUO on two separate dates. Dr. Carothers failed to appear for either of the EUO’s. On September 12, 2006, Unitrin notified Carothers that it was denying all claims submitted for payment by Carothers for Martinez’s MRI’s on the ground that they were not medically necessary.

On or around August 9, 2006, Carothers and Sanchez commenced an action against Kemper Insurance Company, an affiliate of Unitrin, in the Civil Court, Kings County seeking payment on the same claim for Sanchez’s MRI’s which Unitrin seeks to preclude in this action. Unitrin commenced this action on or around October 11, 2006 against Carothers, Martinez, Sanchez and a number of other medical providers who allegedly treated Sanchez and Martinez and had their no-fault benefits assigned to them. The complaint alleges that the defendant medical providers are not entitled to no-fault benefits because, by not appearing for an EUO, they failed to comply with Unitrin’s request for pertinent information to assist in determining the amount due on the respective claims.

In motion sequence number 001, Carothers moves to dismiss the complaint, pursuant to CPLR 1001, 1003 and 3211(a)(1),(4) ),(7) and (10), on the grounds of (1) documentary evidence, (2) prior pending action, (3) failure to state a cause of action and (4) absence of a necessary party. Plaintiff has cross-moved to amend the complaint. In motion sequence number 002, plaintiff moves for a default judgment against defendants Jean Miller, Five Boro Psychological Services, P.C., JOV Acupuncture, P.C., Espalda Chiropractic, P.C., Parkway Supplies, Inc., Presbyterian Hospital, Physician Services Organization, Inc., Francisco Martinez and Miguel Sanchez.

Discussion

A. Carothers’ Motion to Dismiss – In this action, Unitrin contends that it is not obligated to pay any of the current or future no-fault claims submitted by Carothers for the reimbursement of medical services because Dr. Carothers failed to appear for two scheduled EUO’s. On its motion to dismiss the complaint as against it, Carothers argues that this is an insufficient basis to disclaim coverage. The court agrees.

The relationship between an insurance company, insured and medical providers regarding the submission and payment of claims for no-fault benefits is governed by Insurance Law § 5100 et seq., and the accompanying regulations, see 11 NYCRR § 65 et seq. Pursuant to 11 NYCRR § 65-3.11, insureds or eligible injured persons may assign their rights to no-fault insurance payments to providers of medical and health care services, which may then submit a claim for payment of the medical services directly to the insurance company. The insurer must, within 30 days after proof of a claim is received, either pay or deny the claim, in whole or in part. See 11 NYCRR §65-3.8. However, if an EUO is reasonably required and if the policy so permits, the insurer may demand that the injured person or the injured person’s assignee or representative submit to such an examination in order to establish the claim. See 11 NYCRR §§ 65-1.1[d], 65-3.5.

Carothers does not dispute that recovery under a policy can be precluded upon a willful [*3]failure to submit to an EUO. However, Carothers argues that its failure to appear for two EUO’s cannot by itself constitute a willful failure to submit to an EUO resulting in a material breach of the policy. The court agrees. In order to establish willful failure constituting a material breach of the policy, plaintiff must show that the defendant’s attitude “was one of willful and avowed obstruction,” involving a “pattern of noncooperation for which no reasonable excuse is offered.” Ingarra v. General Acc./PG Ins. Co. Of NY, 273 AD2d 766, 767-68 (3rd Dept. 2003). See also Levy v. Chubb Ins., 240 AD2d 336, 337 (1st Dept.1997); Argento v. Aetna Cas. & Sur. Co., 184 AD2d 487, 488 (2nd Dept. 1992); New York Craniofacial Care v. Lumbermen’s Mut. Cas. Co., 3 Misc 3d 322, 326-27 (Queens Co Civ Ct 2004). The insurer’s burden of proving willfulness is a heavy one. See Levy v. Chubb Ins., 240 AD2d at 337. Here, Unitrin’s complaint is devoid of any allegations which would establish that Dr. Carothers’ failure to appear for the two EUO’s was willful, persistent or demonstrative of a pattern of noncooperation. See New York Craniofacial Care v. Lumbermen’s Mut. Cas. Co., 3 Misc 3d at 327. Indeed, Dr. Carothers did not object to appearing for an EUO, but sought payment for lost wages and transportation expenses, payment to which he was entitled under 11 NYCRR §65-3.5(e). Although Unitrin claims that the amount demanded by Dr. Carothers was unreasonable, there is no indication that it ever attempted to negotiate with Carothers over the request for reimbursement. Instead, it simply commenced this declaratory judgment action. Based on such facts, Unitrin is unable to show that Dr. Carothers willfully failed to appear for the EUO’s.

Plaintiff’s cause of action is also deficient because the complaint fails to allege facts indicating that an EUO was reasonably required. Indeed, the complaint fails to allege that, as required under 11 NYCRR § 65-3.5(e), Unitrin utilized any objective standards in determining that the demanded EUO’s were required to establish proof of the claim. Moreover, the record is devoid of any reasonable justification or explanation for Unitrin’s demands.

Finally, in view of this court’s determination that the complaint should be dismissed as against Carothers, it need not address the defendant’s argument that dismissal is appropriate because of a prior pending action between the parties. The court notes, however, that this action and the Civil Court action arise out of same transactions and/or actionable wrongs and the carrier is not precluded from asserting noncooperation as a defense in the other action.

B. Plaintiff’s Cross-Motion for Leave to Amend – As already noted, Unitrin has cross-moved to amend the complaint so as to add the words “willfully and intentionally” to paragraphs 31, 32, 33 and 34 of the complaint. Presumably, Untrin seeks to add these words in order to allege that Carothers willfully and intentionally failed to appear at the two EUO’s and therefore materially breached the policy. Although leave to amend a complaint shall be freely granted, it is well settled that permission should be denied where the proposed amendment is palpably without merit. See Berger v. Water Commissioners of the Town of Waterford, 296 AD2d 649 (3rd Dept. 2002). Since, as previously discussed, plaintiff cannot establish as a matter of law that Carothers willfully failed to cooperate with its request for an EUO, the cross-motion to amend the complaint must be denied.

C. Plaintiff’s Motion for a Default Judgment – In motion sequence number 002, plaintiff [*4]moves for a default judgment against defendants Jean Miller, Five Boro Psychological Services, P.C., JOV Acupuncture, P.C., Espalda Chiropractic, P.C., Parkway Supplies, Inc., Presbyterian Hospital, Physician Services Organization, Inc., Francisco Martinez and Miguel Sanchez on the ground that they have failed to answer the complaint or otherwise appear. Untrin also seeks a declaratory judgment that it has no present or future obligations to furnish no-fault benefits “under claim number 331AZ403544.” This is the same claim number under which Carothers seeks to obtain payment in the Civil Court Action for its MRI services to Martinez and Sanchez.

The only party opposing the plaintiff’s default motion is Carothers, which argues that the motion should be denied because the relief requested clearly affects the rights of other parties not alleged to be in default. Carothers argues that the relief requested by Unitrin could affect Carothers’ ability to collect on its claim for reimbursement of no-fault benefits. Carothers also argues that plaintiff should not be granted a default judgment in a declaratory judgment action based on the default and on the unverified complaint alone since plaintiff has not established its right to a declaratory judgment.

It is well settled that the decision to grant a declaratory judgment on default is a discretionary one and the court should deny it where the declaratory relief requested clearly affects the rights of other parties not alleged to be in default. See CPLR 3001; Merchants Insurance Company of New Hampshire, Inc. v. Long Island Pet Cemetery, 206 AD2d 827 (4th Dept. 1994). Here, the relief requested by Unitrin could adversely affect both nonparty Grullon, who would be denied insurance coverage for any no-fault claims made by Martinez and Sanchez, and Carothers, who stands in the shoes of Sanchez and Martinez and could be precluded from obtaining benefits under the policy if Sanchez and Martinez were denied no-fault benefits under Grullon’s policy.

Indeed, the court is persuaded that the complaint should be dismissed as against the defaulting parties. On a motion for a default judgment, it is incumbent upon the court to assess the merits of the complaint since a plaintiff who fails to make a prima facie showing of a right to judgment is not entitled to a default judgment even if the motion is unopposed. See Martocci v Bowaskie Ice House, 31 AD3d 1021 (3rd Dept 2006). See also Carnegie Hall Corp. v City Univ. of NY, 286 AD2d 214, 215 (1st Dept 2001); Matter of Dyno v. Rose, 260 AD2d 694 (3rd Dept 1999); Joosten v Gale, 129 AD2d 531 (1st Dept 1987). As the court has already determined, the complaint fails to allege facts indicating that there was a material breach of the policy in that the defendants wilfully failed to submit to a reasonably required EUO. Under the circumstances, it is clear that the complaint fails to state a cause of action against not only Carothers, but against any of the defendants. The complaint as against these other defendants must therefore also be dismissed.

Accordingly, in motion sequence number 001, Carothers’ motion to dismiss is granted, the plaintiff’s cross-motion for leave to amend is denied and the complaint is hereby dismissed as against Carothers. In motion sequence number 002, the plaintiff’s motion for a default judgment is denied and the complaint is hereby dismissed in its entirety as against the remaining defendants.

The Clerk Shall Enter Judgment Herein [*5]

Dated:8-20-07MARYLIN G. DIAMOND, J.S.C.

Check one:[X] FINAL DISPOSITION[] NON-FINAL DISPOSITION

[*1]

Supreme Court, Appellate Term, Second Department, August 20, 2007

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City (Zara Friedman of counsel), for appellant. Ilona Finkelshteyn, Brooklyn (Emilia Rutigliano of counsel), for respondent.

{**17 Misc 3d at 17} OPINION OF THE COURT

Memorandum.

Judgment reversed without costs, order granting plaintiff’s cross motion for summary judgment and denying defendant’s motion to strike the complaint, or, in the alternative, to compel discovery, vacated, plaintiff’s cross motion for summary judgment denied and defendant’s motion granted to the extent of compelling plaintiff to serve, within 30 days after the date of the order entered hereon, responses to defendant’s discovery demands, and, within 30 days after service of such responses, to produce a witness for an examination before trial.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to strike the complaint due to plaintiff’s failure to comply with defendant’s discovery demands or, in the alternative, for an order, pursuant to CPLR 3124 and 3126 compelling plaintiff to comply with defendant’s discovery demands. Plaintiff cross-moved for summary judgment. The court granted plaintiff’s cross motion and denied defendant’s motion as moot. [*2]This appeal by defendant ensued.

A plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see e.g. Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Defendant contends that plaintiff failed to make a prima facie showing that its claims were overdue in view of the fact that defendant timely denied plaintiff’s claims. Such an argument lacks merit since a claim becomes overdue if no payment is made within the 30-day claim determination period, notwithstanding the fact that defendant timely denied the claim (see Insurance Law § 5106 [a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 42 AD3d 277 [2d Dept 2007]). However, plaintiff nevertheless was not entitled to summary judgment.

In the instant case, defendant sufficiently demonstrated that it timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that{**17 Misc 3d at 18} items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). We note that our prior holding in Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co. (6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists 2005]) should not be interpreted as requiring that an affidavit of mailing must state either that it was the affiant’s duty to ensure compliance with the insurer’s standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed (see e.g. New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001], supra; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). The denial of claim forms stated that the claims were denied based upon affirmed peer review reports, thereby preserving the defense of lack of medical necessity, and defendant’s papers submitted in opposition to plaintiff’s cross motion for summary judgment were sufficient to demonstrate the existence of an issue of fact with respect to said defense (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007]; West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]).

With respect to defendant’s motion to strike plaintiff’s complaint, or, in the alternative, to compel plaintiff to respond to defendant’s discovery demands, plaintiff offered token opposition.

“The failure of a party to challenge the propriety of a notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122 forecloses inquiry into the propriety of the information sought except with regard to material that is privileged pursuant to CPLR 3101 or requests that are palpably improper” (Marino v County of Nassau, 16 AD3d 628, 629 [2005] [citations omitted]; see also Fausto v City of New York, 17 AD3d 520, 522 [2005]).

In view of the foregoing, defendant’s motion is granted to the{**17 Misc 3d at 19} extent indicated herein (see North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52512[U] [App [*3]Term, 2d & 11th Jud Dists 2006]).

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered March 21, 2006. 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’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records.
The court below denied the motion on the ground that plaintiff failed to make a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer 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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see 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 [*2]was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered April 7, 2006. 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’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by
plaintiff’s corporate officer failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The court denied plaintiff’s motion, finding that there was an issue of fact. The instant appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer 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 [*2]judgment (Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

In light of the foregoing, we reach no other issue.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007