Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50498(U))

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 (Cynthia Kern, J.), dated July 14, 2006, deemed from a judgment entered August 16, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 14, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,133.14.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was granted and the instant appeal by defendant ensued.

Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto. In opposition to plaintiff’s motion for summary judgment, defendant submitted, inter alia, an accident analysis report and an affidavit of the technical consultant who prepared the report in an attempt to demonstrate that there was an issue of fact as to whether the injuries allegedly sustained by plaintiff’s assignor arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). The affidavit proffered by defendant was executed in Maryland, and did not comply with CPLR 2309 (c), in that it was not accompanied by a certificate of conformity. Since this defect was duly objected to by plaintiff in the court below, defendant failed to introduce competent evidence in admissible form establishing that it possessed a founded belief that the alleged injuries did not arise out of an insured incident (see Dan Med., P.C. v New York Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51981[U] [App Term, 2d & 11th Jud Dists 2007]; see also Jenkins v Diamond, 308 AD2d 510 [2003], citing Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]; cf. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & [*2]11th Jud Dists 2006]). Accordingly, plaintiff’s motion
for summary judgment was properly granted, as defendant failed to raise a triable issue of fact.

Defendant’s constitutional challenge to CPLR 2309 (c) is unpreserved for appellate review since this argument was not made in the court below (see Matter of Larry B., 39 AD3d 399 [2007]; Matter of Coleman v Thomas, 295 AD2d 508 [2002]; Catholic Family Ctr. v Doe, 147 AD2d 977 [1989]; Emmer v Emmer, 69 AD2d 850 [1979]). Moreover, said challenge is not reviewable as defendant failed to give the requisite statutory notice to the Attorney General (see Executive Law § 71; CPLR 1012; Estate of Marone v Chaves, 306 AD2d 372 [2003]; Matter of Lee P.S. v Lisa L., 301
AD2d 606 [2003]; Robert Fiance Hair Design Inst. v Concourse Props. Co., 130 AD2d 564 [1987]).

In light of the foregoing, the judgment is affirmed.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 29, 2008