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 (Eileen Nadelson, J.), entered December 3, 2004. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment denied.

In an action to recover assigned first-party no-fault benefits, 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]; Amaze Med. Supply v
Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, the denial of claim form (NF-10) annexed to plaintiff’s moving papers was sufficient to establish that plaintiff’s claims were submitted to and received by defendant (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). To the extent defendant claims that plaintiff failed to make a prima facie showing that plaintiff’s claims were overdue because the NF-10 issued by defendant and annexed to plaintiff’s moving papers indicated that plaintiff’s claims were denied 10 days after defendant received the claims, such an argument lacks merit (see Insurance Law 5106 [a]). [*2]

In opposition to plaintiff’s motion seeking summary judgment, defendant argued that plaintiff was not entitled to summary judgment because the collision was in furtherance of an insurance fraud scheme. We find that the affidavit of defendant’s investigator was sufficient to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since defendant raised a triable issue of fact as to whether there was a lack of coverage, plaintiff was not entitled to summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

In addition, defendant also asserted that plaintiff was not entitled to summary judgment since there was an issue of fact as to whether plaintiff was ineligible for reimbursement of no-fault benefits because plaintiff was alleged to be a fraudulently incorporated medical provider. It is well settled that fraudulently incorporated medical corporations are not entitled to reimbursement of no-fault benefits (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d & 11th Jud Dists 2006]). In light of the foregoing, defendant’s opposition papers were sufficient to raise an issue of fact as to whether plaintiff was entitled to reimbursement of no-fault benefits (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2007 NY Slip Op 27135 [App Term, 2d & 11th Jud Dists]; Midwood Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
VA ACUTHERAPY ACUPUNCTURE, P.C.
a/a/o ANTONIO ARAVJO,

Respondent, [*3]

-against-
STATE FARM INS. CO.,

Appellant.

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

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not 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.
Decision Date: June 15, 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 January 4, 2006. The order granted plaintiff’s motion for partial summary judgment with respect to the cause of action on behalf of assignor Hypolite Francis and denied defendant’s cross motion for partial summary judgment with respect to the cause of action on behalf of said assignor.

Order reversed without costs and matter remitted to the Civil Court, Kings County and held in abeyance for a new determination of the motion and cross motion following a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for partial summary judgment in the sum of $1,454,98 on the claims submitted with respect to Hypolite Francis and defendant cross-moved for partial summary judgment dismissing those claims, inter alia, on the ground that at the time of the accident, Francis was acting in the course of his employment, requiring that plaintiff pursue its compensation claim before the Workers’ Compensation Board. The court granted plaintiff’s motion for partial summary judgment and denied defendant’s cross motion. Defendant’s appeal ensued. [*2]

We find defendant’s proof, including the police accident report, was sufficient to raise a question of fact as to whether Francis was acting as an employee at the time of the accident, which issue must be resolved by the Workers’ Compensation Board (O’Rourke v Long, 41 NY2d 219, 224 [1976]; Matter of Piku v 24535 Owners Corp., 19 AD3d 722, 723 [2005]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]). Accordingly, the order is reversed and the matter remanded to the court below with the direction that the court hold the matter in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’
Compensation Law (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305, 305 [2006]).
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: June 8, 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, Queens County (Diccia T. Pineda-Kirwan, J.), entered October 24, 2005, deemed an appeal from a judgment entered on December 9, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 24, 2005 order denying defendant’s motion for summary judgment and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $7,498.62.

Judgment reversed without costs, order entered October 24, 2005 vacated insofar as it granted plaintiff’s cross motion for summary judgment and plaintiff’s cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing plaintiff’s complaint based upon plaintiff’s assignor’s failure to appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant annexed, inter alia, copies of claim forms, denial of claim forms (NF-10s) and letters scheduling the IMEs. Plaintiff cross-moved for summary judgment. Plaintiff’s cross motion was supported by an affirmation of plaintiff’s counsel and by an affidavit executed by Boris Zigmond, D.C., the “principal doctor” of plaintiff. There were no claim forms or NF-10s [*2]annexed with its cross motion. Rather, Zigmond stated in his affidavit that he was “informed” that the foregoing documents were annexed to defendant’s motion. The court below denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit submitted by Zigmond in support of the cross motion, failed to lay a proper foundation for the documents annexed to defendant’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by Zigmond was insufficient to establish that he possessed sufficient personal knowledge so as to lay a foundation for the admission, as
business records, of the documents upon which plaintiff relied. 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]). Consequently, plaintiff’s cross motion for summary judgment should have been denied.

With respect to defendant’s motion based upon the assignor’s failure to appear for scheduled IMEs, the affidavit submitted by defendant in support of its motion was insufficient to establish the mailing of the IME notices and the assignor’s nonappearance at the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). To the extent defendant also sought dismissal of some of plaintiff’s claims on the ground that the fees charged were not in conformity with the Workers’ Compensation fee schedule, defendant did not proffer sufficient evidence to establish as a matter of law that said claims reflected the incorrect amount for the services provided (see Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op
50388[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the court below properly denied defendant’s motion for summary judgment.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
TRIBORO CHIROPRACTIC AND ACUPUNCTURE, PLLC
a/a/o CRYSTAL WILLIAMS,

Respondent,

-against- [*3]
NEW YORK CENTRAL MUTUAL
FIRE INSURANCE COMPANY,

Appellant.

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

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not 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.
Decision Date: June 8, 2007

—[*1] The Barnes Firm, P.C., Rochester (Richard P. Amico of counsel), for respondent-appellant.

Sugarman Law Firm, LLP, Syracuse (Timothy J. Perry of counsel), for petitioner-respondent.

Appeal from an order of the Supreme Court, Cayuga County (Peter E. Corning, A.J.), entered March 8, 2006 in a proceeding pursuant to CPLR article 75. The order granted the petition and permanently stayed arbitration.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: On July 29, 2003, respondent was seriously injured when the vehicle in which he was a passenger struck another vehicle. Respondent filed claims with the insurance companies for both vehicles. The insurance company for the vehicle in which respondent was a passenger denied his claim on the ground that the policy had expired at the time of the accident and thus the vehicle was not insured. The insurance company for the second vehicle denied respondent’s claim on the ground that there was no liability for the accident on the part of its insured. The Motor Vehicle Accident Indemnification Corporation denied respondent’s subsequent application for benefits on the ground that respondent was covered by an insurance policy issued by petitioner, Progressive Northeastern Insurance Company (Progressive), to respondent’s parents.

On March 16, 2004, respondent filed both a claim for no-fault benefits and an uninsured motorist (UM) claim with Progressive. Progressive paid benefits on the no-fault claim but disclaimed coverage on the UM claim based on respondent’s failure to give Progressive notice and proof of the claim as soon as practicable. When respondent informed Progressive of his intent to arbitrate his UM claim, Progressive commenced this CPLR article 75 proceeding seeking to stay arbitration. We conclude that Supreme Court properly granted the petition.

Contrary to the contention of respondent, the fact that Progressive paid no-fault benefits does not establish that Progressive waived the right to disclaim coverage on the UM claim. “Waiver is the intentional relinquishment of a known right” (Enright v Nationwide Ins. [appeal No. 2], 295 AD2d 980, 981 [2002]; see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1988]). [*2]Here, there is no evidence in the record establishing Progressive’s intentional relinquishment of the notice requirements (see generally Albert J. Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]).

Contrary to respondent’s further contention, Progressive was not required to show prejudice before disclaiming coverage on the UM claim. Traditionally, the rule in New York has been that “an insured’s failure to provide timely notice of an accident [or claim] relieves the carrier of its obligation to perform regardless of whether it can demonstrate prejudice” (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 474-475 [2005]). Although the Court of Appeals has declined to apply the traditional rule in cases where the insurer has received late notice of a legal action but otherwise received timely notice of the accident or claim (see e.g. Rekemeyer, 4 NY3d at 475-476; Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 497-498 [2002]), here there was no timely notice of the accident or claim (see Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339-340 [2005]; Matter of Assurance Co. of Am. v Delgrosso, 38 AD3d 649, 650 [2007]; Gershow Recycling Corp. v Transcontinental Ins. Co., 22 AD3d 460, 461 [2005]; Brownstone Partners/AF&F, LLC v A. Aleem Constr., Inc., 18 AD3d 204 [2005]). Thus, Progressive was entitled to disclaim coverage on the UM claim based on respondent’s seven-month delay in notifying Progressive of the accident or claim (see e.g. Gershow Recycling Corp., 22 AD3d at 461).

In light of our determination, we see no need to reach Progressive’s remaining contention. Present—Hurlbutt, J.P., Gorski, Smith, Lunn and Pine, JJ.

[*1]

Fourth Department, June 8, 2007

APPEARANCES OF COUNSEL

Sugarman Law Firm, LLP, Syracuse (Timothy J. Perry of counsel), for appellant.

Knoer, Crawford & Bender, LLP, Buffalo (Paul A. Bender of counsel), for respondents.

{**43 AD3d at 183} OPINION OF THE COURT

Peradotto, J.

Sheila M. Meegan (plaintiff) was injured in a motor vehicle accident when the vehicle that she was driving was rear-ended by another vehicle. She thereafter settled with the driver of the other vehicle for $25,000, the maximum amount of coverage under his insurance policy. Plaintiffs then commenced this action seeking supplementary uninsured/underinsured motorist (SUM) coverage under the policy issued by defendant to plaintiff Michael T. Meegan, plaintiff’s husband. The case proceeded to trial, and Supreme Court granted plaintiffs’ cross motion for a directed verdict on, inter alia, the issue whether plaintiff sustained a serious injury. The jury thereafter returned a verdict in plaintiffs’ favor, and defendant moved for, inter alia, an order reducing the verdict “to conform to the coverage for this claim”{**43 AD3d at 184} or an order setting aside the verdict and granting a new trial on all issues. The court denied defendant’s posttrial motion, and judgment was entered for plaintiffs in the amount of $479,091.85.

For the reasons that follow, we agree with defendant that a new trial should be granted on the issue whether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) because the court erred in granting that part of plaintiffs’ cross motion for a directed verdict on that issue. That issue involved questions of fact for the jury, and the court therefore erred in concluding that plaintiff’s shoulder injury met the serious injury threshold as a matter of law. [*2]

We address first the judgment in appeal No. 2. Plaintiffs contend that they were not required to establish that plaintiff sustained a serious injury in the context of this case. That contention is inconsistent with their position at trial and is raised for the first time on appeal. Nevertheless, we address plaintiffs’ contention in view of our conclusion that a new trial on the issue of serious injury should be granted. Plaintiffs’ contention involves an issue of first impression in this Department and, although the Second Department addressed the issue in Raffellini v State Farm Mut. Auto. Ins. Co. (36 AD3d 92 [2006]), we disagree with its resolution of the issue.

The SUM endorsement to defendant’s policy provides in relevant part that defendant agrees to “pay all sums that the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by an accident . . . subject to the Exclusions, Conditions, Limits and other provisions of [the] SUM endorsement.” Pursuant to an exclusion in the SUM endorsement, SUM coverage does not apply “for non-economic loss[ ] resulting from bodily injury . . . unless the insured has sustained serious injury as defined in section 5102 (d) of the New York Insurance Law.” Thus, under the terms of the policy, plaintiffs were required to establish that plaintiff sustained a serious injury.

In Raffellini, the Second Department held that the provision in the insurance contract imposing a serious injury threshold requirement in the underinsurance context should not be given effect (see id. at 105). Pursuant to the reasoning of the Second Department,

“the Legislature made a point of imposing the serious{**43 AD3d at 185} injury threshold requirement in [Insurance Law § ] 3420 (f) (1), which governs mandatory, uninsured motorists coverage, . . . [but] omitted that threshold from the ensuing section, section 3420 (f) (2), which governs the optional coverage an insured may, for an additional premium, purchase from his or her insurer” (id. at 103).

Thus, reasoned the Second Department, the omission of the serious injury threshold requirement in section 3420 (f) (2) renders “legally irrelevant” a defense of lack of serious injury (id. at 103), and the regulations imposing such a requirement “would appear unauthorized” (id. at 104). The Court in Raffellini went on to note that Insurance Law § 3420 (a) provides for certain mandatory policy provisions that are to be “equally or more favorable to the insured” and that a provision in a contract imposing a serious injury threshold requirement is less favorable to an insured than section 3420 (f) (2) and thus should not be enforced (see id. at 105).

We disagree with the decision of the Second Department in Raffellini and conclude that plaintiffs were required to establish that plaintiff sustained a serious injury in order to recover under the policy. The language of the SUM endorsement in this case comes directly from the insurance regulations containing the requirements for SUM endorsements, which include the exclusion that SUM coverage does not apply to noneconomic damages unless the insured has sustained a “serious injury” as defined in Insurance Law § 5102 (d) (see 11 NYCRR 60-2.3 [f]).

It is well established that “[r]esponsibility for administering the Insurance Law rests with the Superintendent of Insurance . . . , who has ‘broad power to interpret, clarify, and implement the legislative policy’ ” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 863-864 [2003]; see Insurance Law § 301). Pursuant to Insurance Law § 301, the Superintendent of Insurance has the power to promulgate regulations, and those regulations are valid as long as they are not inconsistent with a specific statutory provision (see Medical Socy. of State of N.Y., 100 NY2d at 864; see also State Farm Mut. Auto Ins. Cos. v Brooks, 78 AD2d 456, 458 [1981], appeal dismissed 54 NY2d 753 [1981]).

In our view, the regulations requiring a person to establish that he or she sustained a serious injury in order to be entitled to SUM coverage are not inconsistent with section 3420 (f) (2) or any other provision of the Insurance Law. In the construction{**43 AD3d at 186} of a statute, the primary consideration for the court is to ascertain and give effect to the intent of the Legislature (see McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [a]; Matter of Allstate Ins. Co. v Libow, 106 AD2d 110, 114 [1984], affd for reasons stated 65 NY2d 807 [1985]). Statutes are to “be given a reasonable construction, it being presumed that a reasonable result was intended by the Legislature” (Statutes § 143).

Insurance Law § 3420 (f) (2) does not explicitly dispense with the serious injury threshold requirement and, because “the statute is silent [on the issue], the regulations [implementing the statute and imposing that requirement] in no way conflict with the statute” (Medical Socy. of State of N.Y., 100 NY2d at 871). We further conclude that the regulations do not impose a requirement that is less favorable to the insured than section 3420 (f) (2). The regulations simply impose the same legal requirement that an injured plaintiff would have against an adequately insured driver and an uninsured driver (see § 3420 [f] [1]; § 5104). The regulations were not promulgated “on a blank slate without any legislative guidance, nor did [they] effectuate a profound change in . . . policy” (Medical Socy. of State of N.Y., 100 NY2d at 865). The obvious purpose of section 3420 (f) (2) and its corresponding regulations is to permit drivers to protect themselves under the same terms as they protect others injured as a result of their negligence. It was not the intent of the Legislature to provide a person injured by an underinsured driver with greater rights or a lesser burden of proof than an injured person otherwise would have against an adequately insured driver, when both actions arise from the same incident. To so conclude would be unreasonable and contrary to the purpose and intent of the No-Fault Law. We further note that SUM coverage is optional, and that an insured elects to obtain such coverage upon the specified terms and conditions of the coverage.

In sum, we conclude that, because the conditional and exclusionary language of the policy is not explicitly prohibited by the statute, and because the regulations implementing such policy provisions are authorized and not inconsistent with the language or purpose of Insurance Law § 3420 (f) (2) or any other provision of the Insurance Law, the policy provision containing the serious injury threshold requirement exclusion is valid and enforceable.

We further conclude that defendant is entitled to a new trial on damages. Contrary to the contentions of plaintiffs, absent{**43 AD3d at 187} evidence that defendant acted in bad faith, their underinsurance claim is limited to the amount of coverage provided in the policy, which is $250,000, less an offset of $25,000 for the payment made on behalf of the other driver (see Mendoza v Allstate Ins. Co., 13 AD3d 594, 595 [2004]). We also add that plaintiff’s recovery of past and future medical expenses and lost wages may be limited by exclusions, conditions, limits, or other provisions of the policy. Defendant’s remaining contentions with respect to the judgment in appeal No. 2 are moot in light of our determination.

We conclude with respect to the order in appeal No. 1 that the court abused its discretion in granting plaintiffs’ motion in limine in part by precluding an expert for defendant from testifying with respect to an entry in the medical records of one of plaintiff’s physicians. In support of their motion, plaintiffs submitted an affidavit of that physician’s office manager in which she stated that plaintiff did not become a patient of the physician until approximately one month after the date of the entry. In her affidavit, however, the office manager did not establish that she had personal knowledge of the entry, nor did she establish that she was responsible for making such entries. Even if she had made such a showing, the certified medical records were admissible in evidence pursuant to CPLR 4518 (c) and constituted prima facie evidence of the facts contained therein (see generally LaDuke v State Farm Ins. Co., 158 AD2d 137 [1990]). Plaintiffs’ contention with respect to the accuracy of the entry in those medical records goes to the weight to be given to the medical records, not their admissibility (see generally National Fuel Gas Supply [*3]Corp. v Goodremote, 13 AD3d 1134, 1135 [2004]).

Accordingly, we conclude that the judgment in appeal No. 2 should be reversed, plaintiffs’ cross motion for a directed verdict denied in part, defendant’s posttrial motion granted in part, the verdict set aside and a new trial granted on the issues of serious injury and damages. We further conclude that the order in appeal No. 1 should be reversed insofar as appealed from and plaintiffs’ motion in limine denied in its entirety.

Centra, J. (dissenting).

I

For the reasons that follow, we respectfully dissent in appeal No. 1 and dissent in part in appeal No. 2 because, in our view,{**43 AD3d at 188} defendant is not entitled to a new trial on the issues of serious injury and damages. With respect to appeal No. 2, we agree with the majority that plaintiffs’ underinsurance claim is limited to $225,000, and we therefore would modify the judgment in appeal No. 2 accordingly.

II

Sheila M. Meegan (plaintiff) sustained injuries in a motor vehicle accident when the vehicle she was driving was rear-ended by a vehicle driven by Kevin T. Berry. Plaintiff settled with Berry’s insurance company for $25,000, the maximum amount of coverage under Berry’s policy. Plaintiffs thereafter commenced this action seeking supplementary uninsured/underinsured motorists (SUM) coverage from defendant, who issued a policy to plaintiff Michael T. Meegan, plaintiff’s husband. Supreme Court granted plaintiffs’ motion in limine in part and precluded certain testimony of defendant’s expert (appeal No. 1). The action proceeded to trial, and a jury awarded plaintiff $26,250 for past lost wages, approximately $21,500 for past medical expenses, $100,000 for past pain and suffering, $50,000 for future lost wages, $65,000 for future medical expenses, and $200,000 for future pain and suffering. The jury also awarded Michael Meegan $15,000 on his derivative claim. The court granted judgment on the verdict (appeal No. 2) and denied defendant’s posttrial motion for an order reducing the verdict, vacating the award for past lost wages and medical expenses, or setting aside the verdict and granting a new trial on all issues. Defendant now appeals.

III

As did the majority, we will first address the issue of serious injury. The majority concludes that the court erred in granting that part of plaintiffs’ cross motion for a directed verdict on the issue of serious injury and that defendant therefore is entitled to a new trial on that issue. The majority further rejects the contention of plaintiffs that they are not required to establish that plaintiff sustained a serious injury. We agree with the decision of the Second Department in Raffellini v State Farm Mut. Auto. Ins. Co. (36 AD3d 92 [2006]) and conclude that plaintiffs are not required to establish that plaintiff sustained a serious injury.

To begin, we note that there is no statutory requirement that a plaintiff who asserts a breach of contract claim for SUM{**43 AD3d at 189} benefits must establish that he or she sustained a serious injury. Insurance Law § 5104 (a) provides that, “in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic [*4]loss, except in the case of a serious injury, or for basic economic loss.” That statute is not applicable to the facts of this case because, although plaintiff is a “covered person,” defendant is not. Plaintiffs’ claim for SUM benefits is governed by Insurance Law § 3420 (f) (2) (A), which provides that a policy of insurance shall, at the option of the insured, provide SUM insurance for bodily injury. That section does not require a plaintiff asserting a breach of contract claim for SUM benefits to establish that he or she sustained a serious injury. Unlike section 3420 (f) (2) (A), however, Insurance Law § 3420 (f) (1) requires a plaintiff seeking uninsured motorist (UM) benefits to establish that he or she sustained a serious injury.

There is therefore no statutory provision to support defendant’s contention that plaintiffs must establish that plaintiff sustained a serious injury. Instead, defendant relies on the insurance policy, which provides that there is no SUM coverage “for non-economic loss[ ] resulting from bodily injury . . . unless the insured has sustained serious injury as defined in section 5102 (d) of the New York Insurance Law.” That provision is set forth in the insurance regulations containing the requirements for SUM endorsements (see 11 NYCRR 60-2.3 [f]).^[FN*] The majority concludes that those regulations are not inconsistent with section 3420 (f) (2) and should therefore be upheld. We disagree with that conclusion.

As the majority notes, the Superintendent of Insurance (Superintendent) “has ‘broad power to interpret, clarify, and implement the legislative policy’ ” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 863-864 [2003]). Where, however, ” ‘the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency’ ” (Matter of Gruber [New York City Dept. of Personnel—Sweeney], 89 NY2d 225, 231 [1996]; see Matter of Belmonte v Snashall, 2 NY3d 560, 566 [2004]). In that situation, “the judiciary need not accord any deference to the{**43 AD3d at 190} agency’s determination, and is free to ascertain the proper interpretation from the statutory language and legislative intent” (Gruber, 89 NY2d at 231-232).

In our view, no deference should be accorded to the Superintendent’s interpretation of the statute, and the regulations are not rational (cf. Belmonte, 2 NY3d at 565-567; Medical Socy. of State of N.Y., 100 NY2d at 867, 871-872). Interpretation of a statute begins with an examination of its plain meaning (see Bluebird Partners v First Fid. Bank, 97 NY2d 456, 460-461 [2002]). In addition,

” ‘[a] statute or legislative act is to be construed as a whole, and . . . all parts of an act are to be read and construed together to determine the legislative intent . . . Not only are different parts of the same act interpreted together, but different acts which are in pari materia are to be construed each in the light of the other’ ” (Matter of Cook v Carmen S. Pariso, Inc., 287 AD2d 208, 215 [2001]; see McKinney’s Cons Laws of NY, Book 1, Statutes § 97).

As noted above, Insurance Law § 3420 (f) (2) (A), governing SUM benefits, does not require any showing of a serious injury, yet section 3420 (f) (1), governing UM benefits, and section 5104 (a), governing negligence actions, do require such a showing. If the Legislature had wished to include a serious injury threshold requirement for SUM benefits, it could easily have done so (see generally Bluebird Partners, 97 NY2d at 461). There was no reason for the Legislature to include such a requirement, however, because a plaintiff seeking to recover SUM benefits from his or her insurer must already have made a showing of serious injury in an action against the tortfeasor. Section 3420 (f) (2) (A) provides that, “[a]s a condition precedent to the [*5]obligation of the insurer to pay under the [SUM] insurance coverage, the limits of liability of all bodily injury liability bonds or insurance policies applicable at the time of the accident shall be exhausted by payment of judgments or settlements” (see Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487, 493 [1999]). Thus, plaintiffs are not entitled to recover SUM benefits against their insurer unless and until they have collected the limits of the policy from the tortfeasor, and plaintiffs must meet the serious injury threshold requirement in that action against the tortfeasor. It would make no sense to require a plaintiff to make a showing of a serious injury in a{**43 AD3d at 191} tort action against a tortfeasor, and then to require the plaintiff to make that same showing again in a breach of contract action for SUM benefits against his or her insurer. Nor is it of any import whether the action against the tortfeasor ended in a settlement or proceeded to trial, where either the court or the jury would make an explicit finding of serious injury. The serious injury requirement is applicable in any of those scenarios. If a plaintiff does not have a serious injury, there is no reason for the tortfeasor to pay the limits of his or her policy.

We agree with the statement of the Second Department in Raffellini that the regulations and the provision in the insurance policy impose a requirement that “is less favorable to the insured than [Insurance Law §] 3420 (f) (2) and should not be given effect” (36 AD3d at 105). In concluding otherwise, the majority states that “[i]t was not the intent of the Legislature to provide a person injured by an underinsured driver with greater rights or a lesser burden of proof than an injured person otherwise would have against an adequately insured driver, when both actions arise from the same incident.” In our view, the majority’s statement is flawed because a person injured by an underinsured driver already is required to meet the serious injury threshold in an action against the tortfeasor. Therefore, by omitting that threshold requirement for a SUM claim, the Legislature is not affording the person injured by an underinsured driver any greater rights or any lesser burden of proof. Regardless of whether a person is injured by an underinsured driver or an adequately insured driver, the person must meet the serious injury threshold in an action against the driver, and an action against the underinsured driver is a condition precedent to any claim for SUM benefits. In upholding the regulations, the majority actually is imposing a greater burden of proof on the person injured by an underinsured driver than a person injured by an adequately insured driver. A person injured by an underinsured driver would first have to establish that he or she sustained a serious injury in order to obtain a judgment or settlement from the tortfeasor and would have to make that showing again in the breach of contract action against his or her insurer for SUM benefits.

In sum, we conclude that the court did not err in directing a verdict on the issue of serious injury because plaintiffs were not required to make that showing in the first instance.{**43 AD3d at 192}

IV

The remaining issues raised by defendant do not require a new trial. Defendant contends that the award of damages for Michael Meegan’s derivative claim must be vacated because the SUM endorsement does not provide coverage for derivative losses. There is no need to reach defendant’s contention, however, because derivative damages awarded for loss of consortium must be added to the direct damages awarded in determining the limit of liability for bodily injury sustained by one person (see Champagne v State Farm Mut. Auto. Ins. Co., 185 AD2d 835, 837 [1992], lv denied 81 NY2d 704 [1993]). In other words, the SUM coverage under this policy was $250,000 per person and $500,000 per accident, and the award of damages for plaintiff and the derivative damages for Michael Meegan cannot exceed $250,000 because plaintiff and Michael are considered one person in this context. Because the award to plaintiff exceeded $250,000, there cannot be an additional amount awarded to Michael Meegan.

There is also no need for a new trial based on the court’s having granted plaintiffs’ [*6]motion in limine in part by precluding an expert from testifying with respect to an entry in the medical records of one of plaintiff’s physicians. Assuming, arguendo, that the court erred in granting that part of plaintiffs’ motion, we conclude that the error is harmless. The entry in the medical records stated that plaintiff “has TMJ problems,” and there was other evidence before the jury concerning plaintiff’s preexisting condition of TMJ dysfunction.

We agree with defendant and the majority that plaintiffs’ underinsurance claim is limited to $225,000, i.e., $250,000 less an offset of $25,000 for the payment made on behalf of the other driver. Plaintiffs’ reliance on Acquista v New York Life Ins. Co. (285 AD2d 73 [2001]) is misplaced. In that case, the plaintiff asserted causes of action for, inter alia, breach of contract and bad faith by defendant insurer (id. at 75). The First Department determined that the cause of action alleging bad faith could not stand as a “distinct tort cause of action [but that the] allegations may be employed to interpose a claim for consequential damages beyond the limits of the policy for the claimed breach of contract” (id. at 82). In this case, however, plaintiffs did not allege bad faith by defendant and thus cannot recover consequential damages beyond the limits of the policy.{**43 AD3d at 193}

V

Accordingly, we would affirm the order in appeal No. 1 and modify the judgment in appeal No. 2 by granting defendant’s posttrial motion in part and reducing the verdict to $225,000.

Lunn and Pine, JJ., concur with Peradotto, J.; Centra, J., and Gorski, J.P., dissent in part and vote to modify in accordance with a separate opinion by Centra, J.

It is hereby ordered that the judgment so appealed from be and the same hereby is reversed on the law without costs, the cross motion for a directed verdict is denied in part, the posttrial motion is granted in part, the verdict is set aside, and a new trial is granted on the issues of serious injury and damages.

Footnotes

Footnote *: We recognize that the regulations apply to claims for SUM benefits involving both uninsured and underinsured vehicles. Our analysis is limited, however, to situations involving only underinsured vehicles.

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, First District (Sharon M.J. Gianelli, J.), dated April 5, 2006. 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, reversed without costs and defendant’s cross motion for summary judgment dismissing the complaint denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment
on the grounds, inter alia, that plaintiff was ineligible for reimbursement of no-fault benefits, citing State Farm Mut. Auto. Ins. Co. v Mallella (4 NY3d 313 [2005]), and that plaintiff lacked standing to sue because it sold its right to collect upon the bills at issue. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, holding that defendant proffered “sufficient evidence that plaintiff is not wholly owned by licensed health care providers as required by Business Corporations [sic] Law § 1503 (b) and § 1507.” Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion for summary judgment.

In support of its cross motion, defendant submitted an unverified complaint and exhibits annexed thereto filed by, among others, plaintiff in an action it commenced in the Supreme [*2]Court, Kings County wherein plaintiff alleged that it entered into a contract to sell accounts receivable. In further support of its cross motion, defendant proffered an affidavit submitted in the Supreme Court action in which the affiant swore that plaintiff agreed to sell its accounts receivable. However, these documents are not dispositive of this action since they constitute informal judicial admissions which are “evidence of the fact or facts admitted . . . the circumstances of which may be explained at trial” (Baje Realty Corp. v Cutler, 32 AD3d 307, 310 [2006] [citations and internal
quotation marks omitted]; see also Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996]). Upon this motion, the record does not establish that plaintiff sold the right to recover upon the claims which are at issue in this action.

To the extent defendant asserts that plaintiff is ineligible for reimbursement of no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, supra), the record does not, at this juncture, support such a determination. Indeed, the unsigned transcript of the testimony given by plaintiff’s principal at an examination under oath in connection with a claim made by a different medical corporation owned by said principal was insufficient to establish, as a matter of law, that plaintiff is owned or controlled by someone other than a licensed medical professional. Similarly, while defendant alleges that plaintiff has channeled the bulk of its profits to a management company and to companies from which it leases its premises and its medical equipment, all of which are related entities, the record lacks sufficient facts to establish the extent to which plaintiff’s profits are being shared. Accordingly, upon this record, it cannot be said, as a matter of law, that plaintiff is ineligible for reimbursement of no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, supra). Therefore, defendant’s cross motion for summary judgment dismissing the action should have been denied since questions of fact exist as to whether plaintiff is eligible for reimbursement of no-fault
benefits and, if so, whether plaintiff sold the accounts which were the subject of this action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 7, 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 August 9, 2005, deemed an appeal from a judgment entered on May 8, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 9, 2005 order granting plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment on plaintiff’s claims regarding assignors Arsen Manukyan, Tsaruk Sarkisian, Dejan Nikolic, Nunu Dzhgamaia and Tsira Gogadze, awarded plaintiff the sum of $24,157.78.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment vacated and plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $900 and $154.30 claims relating to assignor Dejan Nikolic and, with respect to assignor Arsen Manukyan, upon the $400 claim dated February 19, 2003, the $300 claim dated April 10, 2003 and the $700 claim, and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining claims.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed the motion. The court below granted [*2]plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment on all of its claims regarding assignors Arsen Manukyan, Tsaruk Sarkisian, Dejan Nikolic, Nunu Dzhgamaia and Tsira Gogadze. The instant appeal by defendant ensued.

Since defendant raised no issue on appeal regarding plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

With regard to the motor vehicle accident of May 27, 2002, plaintiff submitted two bills in the amounts of $900 and $154.30 for services provided to assignor Dejan Nikolic. Although defendant denied these claims based upon Nikolic’s alleged failure to appear for scheduled independent medical examinations, defendant did not submit an affidavit from someone with personal knowledge regarding his failure to appear. As a result, defendant failed to raise a triable issue of fact with regard to said claims (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

With respect to the motor vehicle accident of November 25, 2002, defendant asserted that plaintiff was not entitled to recover upon the bills for services provided to assignors Arsen Manukyan, Tsaruk Sarkisian, Nunu Dzhgamaia and Tsira Gogadze on the ground that the injuries sustained were not causally related to the accident. In support of said defense, defendant submitted an unsworn accident analysis report and, with respect to Arsen Manukyan, annexed a copy of an unsworn peer review report from a chiropractor and an affirmed peer review report from Jacquelin Emmanuel, M.D. The peer review report from the chiropractor as well as the accident analysis report were inadmissible and, as such, could not establish defendant’s defense that the injuries sustained were not causally related to the accident (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]). In addition, although Dr. Emmanuel’s peer review report was affirmed, it merely concluded that said assignor was not disabled. As a result, said peer review report was insufficient to demonstrate that defendant’s defense of a lack of nexus between the accident and the injuries claimed was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). However, the peer review reports submitted with respect to assignors Tsaruk Sarkisian, Nunu Dzhgamaia and Tsira Gogadze were affirmed by Robert Israel, M.D., who concluded that the injuries they sustained were not related to the November 25, 2002 accident. Said peer review reports were sufficient to establish the existence of a triable issue of fact with regard to the bills submitted on behalf of said assignors (see Central Gen. Hosp., 90 NY2d at 199).

In addition, defendant’s litigation representative established that defendant timely denied bills relating to Arsen Manukyan in the amounts of $914.33, $500, $400 (dated January 27, 2003) and $300 (dated March 3, 2003) on the ground that “a prescribed authorization or assignment of benefits was not submitted and/or was not properly executed.” Thus, defendant raised an issue of fact with respect thereto (see A.B. Med. Servs. PLLC v Peerless, Ins. Co., 13 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2006]; see also Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]).

Accordingly, plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $900 and $154.30 claims relating to assignor Dejan [*3]Nikolic and, with respect to assignor Arsen Manukyan, upon the $400 claim dated February 19, 2003, the $300 claim dated April 10, 2003 and the $700 claim, and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining claims.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
FIRST HELP ACUPUNCTURE, P.C.
a/a/o ARSEN MANUKYAN, TSARUK SARKISIAN,
DEJAN NIKOLIC, NUNU DZHGAMAIA,
TSIRA GOGADZE and JANELLE PHILOGENE,

Respondent,

-against-
PROGRESSIVE NORTHEASTERN INS. CO.,

Appellant.

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

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not 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 the first instance I believe that this Court cannot abrogate its mandate to insure that, at a bare minimum, a prima facie case must be presented by a plaintiff before judgment may be awarded or affirmed.

Furthermore, for the reason stated in my dissent in Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co. (6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]), I find that unsworn reports when submitted in opposition to a motion for summary judgment are sufficient for the purpose of raising a triable issue of fact (see also Levbarg v City of New York, 282 AD2d 239, 241 [2001]).
Decision Date: June 5, 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, Queens County (Joseph Esposito, J.), entered January 6, 2006. The order granted defendant’s motion to compel plaintiff to produce plaintiff’s assignor’s treating providers and an owner of plaintiff for depositions.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for an order compelling plaintiff to produce for a deposition Larisa Likver, D.O., an owner of plaintiff, as well as Leonid Livchits, M.D. and Ronald Pasion, a physical therapist, both of whom allegedly treated plaintiff’s assignor. Defendant claimed that
there was an issue as to whether Dr. Livchits and Mr. Pasion were employees of plaintiff or independent contractors at the time the treatment was rendered. The court granted defendant’s motion and this appeal ensued.

Although the claim forms submitted by plaintiff indicate that Dr. Livchits and Mr. Pasion were independent contractors when the treatments were rendered, plaintiff insists that these were typographical errors and that they were in fact employees of plaintiff. In support of its assertion, plaintiff annexed what purports to be W-2 forms issued by plaintiff to Dr. Livchits and Mr. Pasion. Inasmuch as CPLR 3101 (a) states, “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . [*2]a party, or the officer, director, member, agent or employee of a party,” the court properly ordered plaintiff to produce Dr. Likver, Dr. Livchits and Mr. Pasion for depositions (see CPLR 3101 [a] [1]; see also 7 Carmody-Wait 2d § 42:56, at 100-102; cf. CPLR 3106 [b]; Doomes v Best Tr. Corp., 303 AD2d 322 [2003]; A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists]). To the extent plaintiff argues for the first time on appeal that it does not control the witnesses, such a
conclusory allegation is dehors the record (cf. A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U], supra).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: June 4, 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 (Eileen Nadelson, J.), entered April 5, 2005. The order denied plaintiffs’ motion for partial summary judgment.

Order affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs’ motion for partial summary judgment was supported by an affirmation of plaintiffs’ counsel, an affidavit of plaintiffs’ billing manager, and various documents
annexed thereto. In opposition to the motion, defendant asserted plaintiffs’ assignors’ failure to cooperate with defendant’s investigation and plaintiffs’ failure to comply with its requests for verification. The court below denied plaintiffs’ motion and the instant appeal ensued.

On appeal, defendant asserts that the affidavit by plaintiffs’ billing manager submitted in support of their motion, failed to lay a proper foundation for the documents annexed to plaintiffs’ moving papers and that, as a result, plaintiffs failed to establish a prima facie case. We agree. The affidavit submitted by plaintiffs’ billing manager was insufficient to establish that he [*2]possessed personal knowledge of plaintiffs’ practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiffs’ moving papers. Accordingly, plaintiffs failed to make a prima facie showing of their 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]). Consequently, plaintiffs’ motion for partial summary judgment was properly denied.

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

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: June 4, 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, Queens County (Edgar G. Walker, J.), entered on March 22, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order modified by denying defendant’s cross motion for summary judgment; as so modified, 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 “affidavit” by a corporate officer of plaintiff, and various documents annexed thereto. We agree with the court’s
conclusion that the “affidavit” suffered from multiple defects, such that it cannot be determined that the affidavit was properly sworn to, thereby rendering it insufficient to establish plaintiff’s entitlement to judgment as a matter of law. Consequently, plaintiff’s motion for summary judgment was properly denied.

Defendant’s cross motion for summary judgment was premised upon the allegation that plaintiff’s assignor was injured, if at all, in a staged accident. However, defendant did not prove, as a matter of law, that the alleged injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Zuckerman v City of New [*2]York, 49 NY2d 557 [1980]). As a result, defendant’s cross motion seeking summary judgment should have been denied.

Golia, J.P., Rios and Belen, JJ., concur.