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 (Joseph Esposito, J.), dated May 16, 2008. The order granted defendant’s motion to vacate a default judgment.

Order reversed without costs and defendant’s motion to vacate the default judgment denied.

In this subrogation action to recover first-party no-fault benefits and uninsured motorist benefits paid to its subrogor, plaintiff moved for summary judgment. By order dated July 6, 2007, the motion was granted on default. In May 2008, defendant moved to vacate the July 6, 2007 order, and plaintiff submitted opposition. On May 6, 2008, while defendant’s motion was pending, a default judgment was entered in favor of plaintiff. By order dated May 16, 2008, the Civil Court vacated the May 6, 2008 judgment and the July 6, 2007 order. The instant appeal by plaintiff ensued.

A defendant seeking to vacate a default must demonstrate a reasonable excuse for his default as well as a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1980]; Mora v Scarpitta, 52 AD3d 663 [2008]). Defendant herein did not provide a meritorious defense to the action inasmuch as he failed to make any showing that he was not responsible for the underlying motor vehicle accident, but merely stated, “I don’t owe any money to defendant.” Accordingly, the order of the Civil Court is reversed and defendant’s motion to vacate is denied (see State Farm Auto. Ins. Co. [*2]v A & G Luxury Limo, Inc., 21 Misc 3d 144[A], 2008 NY Slip Op 52471[U] [App Term, 2d & 11th Jud Dists 2008]).

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 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 (George J. Silver, J.), entered February 7, 2008. The order, insofar as appealed from as limited by the brief, upon granting the branch of defendant’s motion seeking leave to reargue, granted the branch of defendant’s motion seeking 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, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. Plaintiff cross-moved for summary judgment and argued in opposition to defendant’s motion that defendant had failed to come forward with proof that the performed MRI was not medically necessary. The Civil Court denied defendant’s motion and plaintiff’s cross motion. By order entered February 7, 2008, the Civil Court granted defendant’s motion seeking leave to reargue and, upon reargument, summary judgment. As limited by the brief, plaintiff appeals from so much of the February 7, 2008 order as granted the branch of defendant’s motion seeking summary judgment.

Contrary to plaintiff’s contention, the affidavit submitted by defendant’s claims representative sufficiently established that the denial of claim form at issue was timely mailed pursuant to 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]). As the affirmed report by [*2]defendant’s examining physician provided a factual basis and medical rationale for his opinion that the billed-for MRI was not medically necessary (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]; 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]), and plaintiff failed to rebut such proof, the Civil Court properly granted defendant summary judgment. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 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 (Margaret A. Chan, J.), entered October 5, 2007. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment established plaintiff’s prima facie entitlement to such relief (see Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; 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]). Defendant did not submit papers opposing plaintiff’s motion. Consequently, the Civil Court improperly denied plaintiff’s unopposed motion for summary judgment.

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated March 24, 2008. The order, insofar as appealed from, denied 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 granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, finding that there was a question of fact as to medical necessity. Defendant appeals from so much of the order as denied its cross motion.

Contrary to plaintiff’s contention, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim form, which had denied plaintiff’s claim based upon a peer review report, since the affidavit described in detail, on the affiant’s personal knowledge, defendant’s standard office practice or procedure used to ensure that the denial was properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The papers submitted in support of defendant’s cross motion for summary judgment dismissing the complaint include the sworn peer review report by defendant’s doctor, which sets forth a factual basis and medical rationale for the doctor’s opinion that the medical services provided were medically unnecessary (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 Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d [*2]142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In addition, defendant’s papers contain the medical records and reports prepared by the assignor’s various providers, which documents were relied upon by defendant’s doctor to establish that there was a lack of medical necessity for the services at issue. In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint (see e.g. Franchini v Palmieri, 1 NY3d 536 [2003]; Diaz v Anasco, 38 AD3d 295 [1st Dept 2007]; Tuna v Babendererde, 32 AD3d 574 [3d Dept 2006]) and shifted the burden to plaintiff, which stands in the shoes of its assignor (see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]), to raise a triable issue of fact in opposition to defendant’s cross motion.

The affidavit submitted by plaintiff in opposition was insufficient as it merely consisted of a conclusory statement by the affiant that he disagreed with the opinion of defendant s peer review doctor that there was no medical necessity for the services rendered. The affiant did not meaningfully refer to, or discuss, the determination of defendant’s doctor. Plaintiff’s remaining contentions similarly lack merit. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 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 9, 2008. The order, insofar as appealed from as limited by the brief, granted so much of plaintiff’s motion as sought summary judgment upon its fifth cause of action.

Order, insofar as appealed from, reversed without costs and so much of plaintiff’s motion as sought summary judgment upon its fifth cause of action denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, insofar as is relevant to this appeal, upon its fifth cause of action, involving a claim in the sum of $398.61. In opposition to plaintiff’s
motion, defendant argued that it never received said claim. As limited by its brief, defendant appeals from so much of the Civil Court order as granted plaintiff summary judgment on its fifth cause of action.

A provider 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 was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). A provider ordinarily establishes the submission of the claim form by demonstrating proof of its proper mailing, which proof gives rise to the presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Here, in light of the contradictions between the affidavit of plaintiff’s billing manager and the annexed post office ledger, upon which the billing manager relied, plaintiff did not establish submission of the $398.61 claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Consequently, plaintiff failed to establish its prima facie entitlement [*2]to summary judgment on its fifth cause of action. Accordingly, the order, insofar as appealed from, is reversed and so much of plaintiff’s motion as sought summary judgment on its fifth cause of action is denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 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 (Lila Gold, J.), entered November 26, 2007. The order denied the petition of 563 Grand Medical, P.C. to vacate a master arbitrator’s award and confirmed the award.

Order affirmed without costs.

563 Grand Medical, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which had upheld the denial of its claim for reimbursement of assigned first-party no-fault benefits. The Civil Court denied the petition, and this appeal ensued.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see Avanessov v State-Wide Ins. Co., 21 Misc
3d 132[A], 2008 NY Slip Op 52131[U] [App Term, 2d & 11th Jud Dists 2008]; SP
Med., P.C. v Country-Wide Ins. Co., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]). The only document submitted by petitioner in support of the petition was a document that was denominated an “Affirmation in Support,” which was not affirmed “to be true under the penalties of perjury” (CPLR 2106). Indeed, the attorney who purportedly signed the document merely indicated that he “states as follows,” which is insufficient under the law (cf. Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. [*2]& Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504 [U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, the document is insufficient as an affirmation (Avanessov, 21 Misc 3d 132[A], 2008 NY Slip Op 52131[U]; SP Med., P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]). In view of the foregoing, the order is affirmed, albeit on other grounds.

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 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 February 11, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 3, 2008 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,864.25.

Judgment reversed without costs, order entered January 3, 2008 vacated, plaintiff’s motion for summary judgment denied and defendant’s cross motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because it was commenced before defendant received responses to its outstanding verification requests. The Civil Court granted plaintiff’s motion and implicitly denied defendant’s cross motion. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

The record demonstrates that defendant timely mailed requests for verification and follow-up requests for verification (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant’s cross motion to dismiss the action as premature should have been granted, as defendant’s time to pay or deny the claim had not elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York [*2]Cent. Mut. Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]).

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

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 09, 2009

[*1]

Supreme Court, Appellate Term, Second Department, July 9, 2009

APPEARANCES OF COUNSEL

Short & Billy, P.C., New York City (Skip Short of counsel), for appellant. Cohen & Jaffe, LLP, Lake Success, for respondent.

{**25 Misc 3d at 20} OPINION OF THE COURT

Memorandum.

Judgment affirmed without costs.

Plaintiff Dr. Albert Davydov, DDS, commenced the instant action to recover assigned first-party no-fault benefits for dental services rendered. After a nonjury trial, the Civil Court rendered a decision in favor of plaintiff in the principal sum of $6,569.27. This appeal by defendant ensued. A judgment was subsequently entered.

Defendant’s contention that plaintiff lacks standing since the assignment of the no-fault benefits executed by plaintiff’s assignor was in favor of Dr. Albert Davydov, DDS, P.C. rather than Dr. Albert Davydov, DDS is without merit. A copy of the assignment accompanied plaintiff’s claim form, and the discrepancy was apparent on its face. Defendant did not seek verification with respect to the assignment, and its denial of claim form did not deny the claim on the ground that the assignment was defective. As a result, defendant is now precluded from litigating this issue (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; P.L.P. Acupuncture, P.C. v Travelers Indem. Co., 19 Misc 3d 126[A], 2008 NY Slip Op 50484[U] [App Term, 1st Dept 2008]).

A provider establishes a prima facie entitlement to judgment as a matter of law by submitting proof that the prescribed statutory billing forms were mailed and received, and that [*2]payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742{**25 Misc 3d at 21} [2004]). In the instant case, Dr. Davydov’s testimony and the exhibits admitted into evidence were sufficient to satisfy plaintiff’s burden. Contrary to defendant’s contention, the elements of a prima facie case to recover assigned first-party no-fault benefits do not differ based upon the nature of the services provided by the plaintiff provider (see Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129 [2008]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; Mary Immaculate Hosp., 5 AD3d 742 [2004]).

Defendant contends that the trial court improperly curtailed defendant’s cross-examination and direct examination of Dr. Davydov. Defense counsel attempted to question Dr. Davydov regarding the medical necessity of the services rendered and whether the amount charged exceeded the amount set forth in the fee schedule. Since the parties did not stipulate to the timeliness of the denials, it was defendant’s burden to establish that it timely denied plaintiff’s claims so as to demonstrate that defendant’s proffered defenses were not precluded. Inasmuch as defendant called no witnesses and presented no evidence to show that its denials were timely mailed, defendant failed to establish that said defenses were not precluded (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). Consequently, the court properly curtailed examination of the witness with respect thereto.

Accordingly, the judgment is affirmed.

Golia, J. (dissenting and voting to reverse the judgment and dismiss the complaint in the following memorandum). I find that plaintiff Dr. Albert Davydov, DDS was without standing to prosecute the instant proceeding. I conclude, contrary to the holding by the majority, that the factual circumstances of the instant matter are inapposite to the Court of Appeals’ holding in Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (9 NY3d 312 [2007]).

In Hospital for Joint Diseases, the plaintiff medical provider submitted a claim form along with an assignment of benefits form that did not contain any signature, but which stated that the patient’s signature was “on file.” The insurance carrier in that case did not ask for further verification or demand a copy of the original document containing the signature that was purportedly “on file.” It eventually denied the claim on the{**25 Misc 3d at 22} grounds that such assignment was invalid and therefore the plaintiff did not have standing to prosecute the claim. The Court of Appeals held that inasmuch as the carrier was precluded from raising any affirmative defense as to the validity of the assignment of benefits form due to its failure to timely seek verification, it could not now contest the validity of such assignment. Therefore, the plaintiff therein had standing to bring the action and the assignment was deemed to be valid.

There is, however, a vitally important difference between that case and this one. In Hospital for Joint Diseases, the assignment of benefits form was drawn to the benefit of the [*3]plaintiff “Hospital for Joint Diseases,” whereas in the present case the subject assignment of benefits form is drawn to the benefit of an entirely different entity than this plaintiff who now seeks to benefit from the assignment.

In that case, the Court of Appeals found the assignment cannot be assailed and must be deemed valid. In this case, in light of defendant’s failure to seek appropriate verification, I do not suggest that the subject assignment of benefits form was not valid. Quite the contrary, I accept its validity. Nevertheless, I take exception to the holding of the majority inasmuch as the “valid” assignment of benefits form does not inure to the benefit of the person who is prosecuting this claim, to wit: the named plaintiff herein, Dr. Albert Davydov, DDS, individually.

To overlook this important distinction would be to say that “John Jones,” the Chairman of the Board of the Hospital for Joint Diseases, could properly demand that Travelers Property and Casualty Insurance Company make payment to his personal account merely because the carrier chose not to seek a verification of an assignment made to the benefit of the Hospital for Joint Diseases.

This court should not discount the important distinction that the assignee and the claimant are two very different and independent entities simply because the individual plaintiff/claimant is Dr. Albert Davydov, DDS and the assignee is named Dr. Albert Davydov, DDS, P.C. I would suggest that Dr. Davydov himself would argue vociferously that he as an individual has no obligation to pay the debts or expenses that might be incurred by Dr. Albert Davydov, DDS, P.C. and vice versa. That would be his right, for which fault would not attend. However, since he has chosen to conduct his business affairs in a corporate status, he cannot now choose to prosecute the claims of that corporate entity in favor of himself individually.{**25 Misc 3d at 23}

There is only one assignee herein and that assignee is not the plaintiff.

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

Supreme Court, Westchester County

27003/2008

Kelley Drye & Warren LLP

Attorneys for Plaintiff

101 Park Avenue

New York, New York 10178

Schindel, Farman, Lipsius, Gardner & Rabinovich, LLP

Attorneys for Defendant

14 Penn Plaza, Suite 500

New York, New York 10122

William J. Giacomo, J.

Plaintiff John Hancock Life Insurance Company of New York (“John Hancock”) seeks a declaratory judgment that a life insurance policy (the “Policy”) it issued to defendant Shavy Hirsch (“Hirsch”) insuring the life of her stepmother Rivka Landau (“Landau”) is null and void and of no force or effect and that John Hancock has no obligation to pay any benefits or otherwise perform under the Policy. Alternatively John Hancock seeks judgment permitting it to rescind the Policy.

For the reasons set forth below this Court grants the plaintiff’s motion to the extent that the Policy is declared null and void because an express condition precedent to coverage under the Policy was not met.

[*2]FACTUAL & PROCEDURAL BACKGROUND

On December 4, 2006, Landau presented to her personal physician, David M. Ziemba, M.D. (“Dr. Ziemba”) complaining of soreness from a mass on her right breast. Subsequently, on December 11, 2006, Landau had a sonogram on her right breast, which confirmed the presence of a mass “suspicious for a malignancy” and she was referred for a biopsy.

On the same date Landau presented for the sonogram, December 11, 2006, a written application (the “Application”) for the aforementioned Policy was submitted to John Hancock seeking a $10 million life insurance policy on the life of Landau. The Application, as well as a “Health Questionnaire”, were signed by Hirsch, Landau and an independent life insurance broker. Landau and Hirsch acknowledged in the Application and Health Questionnaire the veracity and completeness of all their answers to inquiries in the Application and Health Questionnaire. In response to inquiries regarding Landau’s health, there was no disclosure of Landau’s complaint of pain and soreness to her breast, her visit to her personal physician, or the fact that she had a sonogram done. The Application also contained the following proviso also acknowledged by Landau and Hirsch:

Any life insurance policy issued as a result of this application will be effective on the later of the date the first premium has been paid in full and the date the policy has been delivered. The insurance will not be in effect if there has been any deterioration in the insurability of any proposed life insured(s) since the date of the application. [Application at Declarations ¶2(a).]

On December 14, 2006, Landau, afer undergoing a mammogram and biopsy, was diagnosed with breast cancer, and was immediately referred for a surgical consultation. No document submitted to John Hancock with the Application was ever amended or supplemented.

On December 22, 2006, John Hancock issued the Policy, which Policy was delivered on December 26, 2006 and the first premium was paid on December 28, 2006.

In 2008, as part of internal review, John Hancock procured medical records from Landau’s physicians pursuant to properly executed authorizations and discovered the cancer diagnosis.

On December 15, 2008, John Hancock commenced the instant action by the filing of its summons and complaint and simultaneously forwarded a letter to Hirsch informing that it was rescinding the Policy and requesting its return. John Hancock advised that it would accept no further premium payments and offered to tender all premiums already paid by defendants upon surrender of the Policy and acknowledgment of its rescission. The defendant declined John Hancock’s offer. On February 3, 3009, Hirsch served her answer and issue was joined.

Plaintiff now moves for summary judgment. Defendant opposes the motion. No discovery has been conducted in this matter.

DISCUSSION [*3]

It is well settled that summary judgment is a drastic remedy which should not be granted where there is any doubt about the existence of a triable issue of fact. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316, 476 NE2d 642 (1985).

A party seeking summary judgment bears the initial burden of affirmatively demonstrating its entitlement to summary judgment as a matter of law. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316, 476 NE2d 642 (1985); Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 (1986). To obtain summary judgment it is necessary that the movant establish its claim via the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor. CPLR 3212(b). Failure of a moving party to tender sufficient evidence to demonstrate as a matter of law its prima facie entitlement to summary judgment requires denial of the motion, regardless of the sufficiency of the opposing papers. McDonald v. Mauss, 38 AD3d 727, 832 NYS2d 291 (2nd Dept., 2007).

After a sufficient prima facie showing is made, the burden of proof then shifts to the the opposing party who must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR 3212(b).

Was an Enforceable Contract of Insurance Created?

It is well settled that to create an enforceable contract of insurance there must be acceptance by the insurance company and communication of that acceptance to the applicant. Goldberg v. Colonial Life Ins. Co. of Am., 284 App.Div. 678, 134 NYS2d 865, (2nd Dept., 1954) app. dismissed, 308 NY 958, 127 NE2d 99(1955). Further, an enforceable contract of insurance also requires compliance with the terms of the application and compliance with the conditions precedent within the application, before the “ripening of the application into a policy of insurance.” Mendel v. U.S. Life Ins. Co. in City of New York, 248 AD2d 873, 875, 670 NYS2d 920, 922 (3rd Dept., 1998), lv. denied 92 NY2d 804, 677 NYS2d 779, 700 NE2d 318(1998); see also, Schmitt v. North American Co. for Life and Health Ins. of New York, 30 AD3d 1007, 817 NYS2d 462(4th Dept., 2006),

lv. denied 7 NY3d 712, 824 NYS2d 604 (2006).

Where an applicant for a life insurance policy knows of even a possible health problem after an application is submitted, but prior to the issuance of the policy, he is under an obligation to inform the insurance company of that information. Id.; see also, Meagher v. Executive Life Ins. Co. of NY, 200 AD2d 720, 721, 607 NYS2d 361(2nd Dept., 1994) and North Atlantic Life Ins. Co. of America v. Katz, 163 AD2d 283, 557 NYS2d 150(2nd Dept.,1990).

In Schmitt v. North American Co. for Life and Health Ins. of New York, it was undisputed that the applications for life insurance did not indicate that decedent had lymphoma and that he had been diagnosed with that condition prior to the delivery and payment of the first premium of the policy. The Court held that the

“decedent failed to comply with a condition precedent inasmuch as he failed to notify defendant of the change in the state of his health prior to the delivery of the respective policies and payment of the first premiums for each policy, and thus the policies never [*4]became effective.” Id. 30 AD3d at 1009, 817 NYS2d at 464.

Similarly, in North Atlantic Life Ins. Co. of America v. Katz, a life insurer brought an action to rescind a life insurance policy after it was discovered that the insured failed to inform the life insurer that he was suffering from a recurrence of lymphoma when he applied for a second policy. The Court held that

An insured cannot remain silent while cognizant that his insurance application contains misleading or incorrect information …In particular, he must notify his insurance company of nonapparent medical conditions which the company probably would consider relevant when deciding whether to issue a policy. Id., citing, Axelroad v. Metropolitan Life Ins. Co., 267 NY 437, 196 N.E. 388(1935); Wageman v. Metropolitan Life Ins. Co., 24 AD2d 67, 263 NYS2d 915(1st Dept., 1965), aff’d 18 NY2d 777, 274 NYS2d 908, 221 NE2d 566(1966).

Furthermore, whether or not Landau or defendant had actual knowledge of a cancer diagnosis is immaterial. All that was necessary was a showing that Landau’s health had “deteriorated” between the time of the submission of the Application and the issuance of the Policy. Levande v. Canada Life Assur. Co., 23 AD2d 669, 257 NYS2d 323 (2nd Dept., 1965) aff’d, 17 NY2d 645, 269 NYS2d 430, 216 NE2d 594 (1966). In Levande v. Canada Life Assur. Co., the Appellate Division held that where, between the time of medical examinations of insured by insurer and delivery of life policies, “the insured had visited doctors by reason of symptoms of disease-symptoms which were not trivial and which would ordinarily act as a warning or notice, even to a layman, that his health might be impaired” there was breach of condition precedent to taking effect of life policies. Id.

Based on the foregoing, the dispositive issue to be determined on this motion is whether (1) Landau and Hirsch failed to disclose material health information at the time of the Application and the submission of the Health Questionnaire, or (2) there had been a deteriorative change in Landau’s health between the time of the Application and the issuance of the Policy which required defendant to notify plaintiff of that information.

Either of the foregoing would constitute a breach of the condition precedent and render the Policy void.

Were the Terms of the Condition Precedent Satisfied?

In the instant matter, in order to prove the medical condition which is the basis for its argument that the Policy is void or should be rescinded, plaintiff submits the medical records of Landau which it obtained via the aforementioned duly executed authorizations. These records include: the illegible handwritten notes of Dr. Ziemba; a December 11, 2006 report of the sonogram performed by Martin I. Elsant, M.D. and addressed to Dr. Ziemba; two (2) December 14, 2006 mammogram reports from Julie Mitnick, M.D. addressed to Alisan Goldfarb, M.D.; and a December 19, 2006 MRI report from Barbara Baskin, M.D. addressed to Alisan Goldfarb, M.D.

These reports and records submitted by plaintiff in support of its motion for summary judgment, and notably without which it cannot meet its prima facie burden, are unsworn or unaffirmed, not certified nor have the requisite statutory foundation [*5]been laid for their admission as business records. Accordingly, defendant argues in opposition that these reports and records lack probative value and thus summary judgment must be denied on account of plaintiff’s failure to meet its initial burden of proof.

This Court rejects defendant’s argument. First, these records and reports are not hearsay^[FN1] because they are not necessarily being offered for the truth of their content, but rather to establish that Landau did have these tests done and sought medical attention. See generally, Spensieri v. Lasky, 94 NY2d 231, 723 NE2d 544(1999)[When the Physicians Desk Reference is admitted into evidence “it is admitted solely to establish the existence of a warning, …the warning is not offered for the truth of its contents.”]; Stern v. Waldbaum, Inc., 234 AD2d 534, 535, 651 NYS2d 187 (2d Dep’t 1996)[Out-of-court statements by unknown declarants are admissible to establish notice of a dangerous condition, even where accuracy of statements is not established]; Oberle v. Caracappa, 133 AD2d 202, 518 NYS2d 989 (2nd Dept., 1987)[Testimony as to what subscribing witnesses said when presenting candidate’s designating petition for signature was not hearsay and was admissible, as it was introduced merely to demonstrate that statements were made, not truth of matter asserted in them]; Novak v. Greater New York Sav. Bank, 35 AD2d 541, 313 NYS2d 425 (2nd Dept., 1970)[In action to recover balance allegedly owing to depositor upon his account in defendant bank, allegedly forged withdrawal slip offered by bank in attempt to prove that it had exercised reasonable care in mistakenly making payment to one other than depositor was not hearsay as the slip was not offered for its truth]; Yee Sing Tung v. Mon-Leang Mui, 260 AD2d 294, 689 NYS2d 46 (1st Dep’t, 1999) [Out-of-court statements not admitted for the truth of their assertions but to explain the defendant’s actions].

Second, this Court holds that in this case the plaintiff may submit unsworn medical reports and records to support its motion.A party moving for summary judgment may “submit unsworn medical reports and records of an injured plaintiff’s physicians in support of a motion for summary judgment.”^[FN2] Meely v. 4 G’s Truck Renting Co., Inc., 16 AD3d 26, 789 NYS2d 277(2nd Dept., 2005); see also, Pagano v. Kingsbury, 182 AD2d 268, 587 NYS2d 692(2nd Dept., 1992)[threshold motion]; Arbour v. Commercial Life Ins. Co., 240 AD2d 1001, 659 NYS2d 525(3rd Dept., 1997)[action against insurer to recover permanent and total disability benefits]; A.B. Medical Services PLLC v. Travelers Property Cas. Corp., 5 Misc 3d 214, 783 NYS2d 244 (N.Y.City Civ.Ct., 2004)[action to recover first-party no-fault benefits]. Moreover, in the instant matter, the reports and records that plaintiff relies upon were obtained from Landau’s physicians pursuant to a duly executed authorization accompanied by a [*6]HIPAA release which insured their authenticity. See, Burnett v. Zito,252 AD2d 879, 676 NYS2d 318 (3rd Dept.,1998)[movant’s submission of unsworn medical reports from two of plaintiff’s physicians permitted as plaintiff’s authorization for release insured their authenticity]; Oeffler v. Miles Inc., 241 AD2d 822, 660 NYS2d 897(3rd Dept., 1997)[movant may rely upon records and reports of plaintiff’s own doctors for which it received releases on summary judgment motion].

Accordingly the court will consider all the medical reports and records submitted by the plaintiff in support of its motion for summary judgment.

Starting with the records of Dr. Ziemba, this Court will not consider the handwritten notes of Dr. Ziemba since they are illegible. No “translation” of these notes is included with the papers. It is not the Court’s obligation to decipher illegible documents or to guess as to what the meaning of the “shorthand” entries contained therein mean. Simply “a notation in a physician’s office record which is illegible is not admissible”. Wilson v. Bodian, 130 AD2d 221, 232, 519 NYS2d 126, 133 (2nd Dept., 1987), citing, Campbell v. Manhattan & Bronx Surface Tr. Operating Auth., 81 AD2d 529, 438 NYS2d 87(1st Dept., 1981).

The remaining medical reports and records, i.e. the December 11, 2006 report of the sonogram performed by Martin I. Elsant, M.D., the two (2) December 14, 2006 mammogram reports from Julie Mitnick, M.D., and the December 19, 2006 MRI report from Barbara Baskin, M.D. are legible.

The reports, all of which were issued prior to the issuance of the Policy, indicate that Landau and Hirsch knew at the very least of a possible health problem after the Application was submitted, but prior to the issuance of the policy, and thus they were under an obligation to inform the Plaintiff of that information. Schmitt v. North American Co. for Life and Health Ins. of New York, supra ; Meagher v. Executive Life Ins. Co. of NY, supra and North Atlantic Life Ins. Co. of America v. Katz, supra .

Based on the foregoing, plaintiff has established its prima facie entitlement to summary judgment as a matter of law.

In opposition, defendant fails to raise a triable issue of fact that would defeat the motion. Addressing defendant’s claim that summary judgment is inappropriate because there has been no discovery, the Court notes the defendant does not make any showing that facts sufficient to defeat the motion would be revealed during discovery; the mere hope that discovery may reveal such facts is insufficient to defeat a summary judgment motion. Companion Life Ins. Co. v. All State Abstract Co., 35 AD3d 519, 829 NYS2d 536 (2d Dept., 2006). Moreover, mere speculation cannot serve to defeat the motion. Leggio v. Gearhart, 294 AD2d 543, 743 NYS2d 135(2nd Dept., 2002).

On account of the foregoing, the motion for summary judgment is GRANTED. The Policy is hereby declared VOID.

Plaintiff is directed to return all premium paid pursuant to the Policy to defendant within thirty (30) days.

The foregoing shall constitute the decision, order and judgment of the Court.

Dated: White Plains, New York

July 8, 2009 [*7]

HON. WILLIAM J. GIACOMO, J.S.C.

cc:

Footnotes

Footnote 1:Hearsay is an out-of-court statement offered for the truth of the fact asserted. Richardson, Evidence [Prince, 10th ed.], § 200, p. 176.

Footnote 2:While the use of unsworn and unaffirmed medical reports and records by a defendant moving for summary judgment in a threshold case is well settled, this Court sees no reason why the same rule does not apply herein.