Plaintiffs, as limited by their briefs, appeal from so much of an order of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), entered March 21, 2014, as denied their cross motion for summary judgment on their first through sixth causes of action, and granted that branch of defendant’s motion seeking to compel plaintiffs to respond to discovery demands.

Per Curiam.

Order (Lynn R. Kotler, J.), entered March 21, 2014, insofar as appealed from, reversed, with $10 costs, plaintiffs’ cross motion for partial summary judgment on their first through sixth causes of action is granted, and that branch of defendant’s motion seeking to compel discovery is denied.

Plaintiffs-providers established their prima facie entitlement to partial summary judgment on the first-party no-fault claims set forth in their first through sixth causes of action (see Insurance Law § 5106[a]; Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313 [2008]. In opposition, defendant failed to raise a triable issue. Indeed, defendant’s own documentary submissions, which included plaintiffs’ claim forms that were date-stamped received by defendant, established defendant’s receipt of plaintiffs’ claims and that payment of benefits was overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]).

Defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignments (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348-349 [2005]). Nor may defendant assert the defense of excessive fees, inasmuch as it failed to establish that its denials were timely issued within the statutory 30-day period (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011], lv denied 18 NY3d 810 [2012]).

Defendant also failed to demonstrate that summary judgment is premature due to outstanding discovery pertaining to plaintiffs’ prima facie case, since defendant did not make the [*2]required showing that further discovery may raise a triable issue of fact (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727 [2006]). Defendant’s speculative contention that further discovery may support its lack of coverage defense is improperly raised for the first time on appeal (see Mount Sinai Hosp. v Dust Tr., Inc., 117 AD3d 921 [2014]), and is, in any event, an insufficient basis for denying plaintiffs’ motion (see Interboro Ins. Co. v Clennon, 113 AD3d at 597]).

In the absence of a cross appeal by defendant, we do not address the propriety of the court’s denial of the request to toll interest. Defendant’s remaining arguments, to the extent preserved for appellate review, have been considered and rejected.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered November 14, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Appeal from order (Gerald Lebovits, J.), entered November 14, 2013, deemed, pursuant to CPLR 5517(b), to be taken from the subsequent order (same court and Judge), entered July 17, 2014, which, upon reargument, adhered to the original determination denying defendant’s motion for summary judgment dismissing the complaint, and so considered, order reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing this action seeking recovery of first-party no-fault benefits by submitting evidence establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his counsel, and that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]).

Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant’s third-party IME scheduler attesting to the affiants’ personal knowledge of their office practices and policies in situations where an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v. Lucas, 111 AD3d at 424). Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]), relied upon by the motion court, does not warrant a contrary result, since in that case the affiant did not demonstrate personal knowledge of the law firms’s practices and procedures in establishing appearances at scheduled examinations under oath (compare Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; accord [*2]Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]).

In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on May 13, 2015

Decided on May 6, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered January 29, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 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 fraudulent procurement of the insurance policy by virtue of the assignor’s misrepresentation of his address in order to obtain insurance at a lower premium. Plaintiff opposed the motion. The Civil Court denied defendant’s motion, and we affirm.

An insured may be denied no-fault benefits where an insurer submits evidence in admissible form showing that the insured had fraudulently procured the insurance policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d, 11th & 13th Jud Dists 2012]; New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52286[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Defendant argued that when the insured, plaintiff’s assignor, had applied for the insurance policy at issue, he had provided an address in Wappingers Falls, Dutchess County, an area which had a lower premium for coverage than Queens County, where he actually resided. While the certified transcript of plaintiff’s assignor’s testimony at an examination under oath was admissible (see American States Ins. Co. v Huff, 119 AD3d 478 [2014]), the assignor’s testimony failed to eliminate all material issues of fact (see Winegrad, 64 NY2d at 853) as to whether he lived in Queens County, rather than Wappingers Falls, Dutchess County, at the pertinent time. Defendant’s exhibits also included its investigator’s report, which was not sufficient to establish that the assignor did not reside in Wappingers Falls during the relevant period, as the report was based upon statements that constituted inadmissible hearsay (see Petrillo v Town of Hempstead, 85 AD3d 996 [2011]; Saunders v 551 Galaxy Realty Corp., 64 AD3d 564 [2009]). Consequently, as defendant failed to make a prima facie showing that plaintiff’s assignor had made material misrepresentations in order to obtain insurance at reduced premiums (cf. Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; AA Acupuncture Serv., P.C. v Safeco Ins. Co. of Am., 25 Misc 3d 30 [App Term, 1st Dept 2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, May 6, 2015

APPEARANCES OF COUNSEL

Freiberg, Peck & Kang, LLP, Armonk (Yilo J. Kang of counsel), for appellant.

Ordered that, on the court’s own motion, the notice of appeal from an order of the same court dated November 6, 2013 is deemed a premature notice of appeal from the amended order entered December 12, 2013 (see CPLR 5520 [c]); and it is further ordered that the amended order is reversed, with $30 costs, and defendant’s motion seeking, in effect, summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff mailed a copy of the summons and complaint to defendant in 2004, pursuant to CPLR 312-a. The record does not contain the signed acknowledgment of receipt required by CPLR 312-a. Nevertheless, in May 2004, defendant served a verified answer, in which it asserted, among other affirmative defenses, lack of personal jurisdiction, as defendant had not been “properly served with process,” and plaintiff’s failure to properly obtain an index number. In 2010, plaintiff purchased an index number and, for the first time, filed with the Civil Court the 2004 summons and complaint along with defendant’s 2004 answer. There is no proof of service upon defendant of the summons and complaint following the 2010 Civil Court filing (see CCA 411). Plaintiff thereafter served a notice of trial and certificate of readiness on defense counsel, and filed it in the Civil Court in 2011.

By notice of motion dated February 21, 2011, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction, or, in the alternative, to vacate the notice of trial. In opposition, plaintiff argued that defendant had waived its jurisdictional defense since defendant had failed to move to dismiss the complaint within 60 days of its service of the answer in 2004, in accordance with CPLR 3211 (e). By order dated November 6, 2013, the Civil{**48 Misc 3d at 61} Court denied defendant’s motion to dismiss the complaint, finding that, although plaintiff had not properly served process, defendant had failed to timely challenge the defective service (41 Misc 3d 1226[A], 2013 NY Slip Op 51842[U] [Civ Ct, Richmond County 2013]).

Since defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) was made after it had served its responsive pleading, the motion was untimely (see CPLR 3211 [e]). However, the record indicates that the parties charted a summary judgment course (see Mihlovan v Grozavu, 72 NY2d 506 [1988]) and, thus, we apply the standard applicable to motions for summary judgment (see Fuentes v Aluskewicz, 25 AD3d 727 [2006]).

Furthermore, we note that the facts of this case, with respect to the issue of whether jurisdiction was acquired over defendant, are similar to the facts in New York Med. Rehab., P.C. v Travelers Ins. Co. (40 Misc 3d 76 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), and our holding herein is in accordance with the decision therein.

“CPLR 312-a, as an alternative to the other methods of personal service authorized by CPLR 307, 308, 310, 311 or 312, permits personal service to be made by first class mail, by mailing a copy of the summons and complaint, together with two copies of a statement of service by mail and acknowledgment of receipt, with a return envelope, postage prepaid, addressed to the plaintiff (CPLR 312-a [a]). The defendant must complete the acknowledgment of receipt and mail or deliver it within 30 days from the date of receipt. Under CPLR 312-a, service is complete on the date the signed acknowledgment of receipt is mailed or delivered to the plaintiff (but cf. CCA former 410 [b]). The signed acknowledgment of receipt constitutes proof of service (CPLR 312-a [b] [1]; 306 [d])” (New York Med. Rehab., P.C., 40 Misc 3d at 79).

In 2004, when plaintiff sought to serve defendant pursuant to CPLR 312-a,

“an action in the Civil Court was commenced by service of the summons (CCA former 400). Service of the summons was complete upon filing proof of service (CCA former 410 [b]), or, in the case of service pursuant to CPLR 312-a, by filing the acknowledgment of receipt, which constitutes proof of service{**48 Misc 3d at 62} (CPLR 312-a [b] [1]; 306 [d])” (New York Med. Rehab., P.C., 40 Misc 3d at 79).

The record in the present case reveals that an acknowledgment of receipt was never signed by defendant and returned to plaintiff. Consequently, plaintiff was required to effect personal service in another manner (see CPLR 312-a [e]; Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]). Since plaintiff did not attempt another manner of service, the purported service pursuant to CPLR 312-a failed to acquire personal jurisdiction over defendant (see Klein v Educational Loan Servicing, LLC, 71 AD3d 957 [2010]; Dominguez, 207 AD2d at 375; Gateway Med., P.C. v Progressive Ins. Co., 30 Misc 3d 144[A], 2011 NY Slip Op 50336[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), and, thus, the action was never commenced in 2004 (see CCA former 400).

“Although no action had been commenced and, thus, defendant’s time to answer had not yet commenced, [in May] 2004, defendant nevertheless served plaintiff with an answer, in which it asserted, as an affirmative defense, lack of personal jurisdiction. Thus, having preserved its jurisdictional defense, the answer could not be deemed the ‘equivalent to personal service of the summons upon’ defendant (CPLR 320 [b])” (New York Med. Rehab., P.C., 40 Misc 3d at 80).

Contrary to plaintiff’s contention, “as there was no viable pending action, defendant cannot be deemed to have waived its defense of lack of personal jurisdiction by failing to make a motion to dismiss this ‘action’ ” (id.) within 60 days of the service of its answer, in accordance with CPLR 3211 (e).

In 2010, after the commencement-by-filing system had gone into effect in the New York City Civil Court, plaintiff purchased an index number and filed the 2004 summons and complaint, as well as defendant’s 2004 answer. The record supports defendant’s contention that it was never served with pleadings bearing the 2010 index number (see CCA 410), and, thus, that personal jurisdiction was not acquired over it under the current system (see CCA 400 [2]; New York Med. Rehab., P.C., 40 Misc 3d at 80).

As the Civil Court lacks jurisdiction over defendant, the amended order is reversed and defendant’s motion seeking, in effect, summary judgment dismissing the complaint is granted.

In view of some of the remarks contained in the amended order, we take this opportunity to remind the Judge that, as one commentator has noted:{**48 Misc 3d at 63}

“Judges may face a dilemma in trying to write opinions that are [*2]figurative, quotable, humorous, or unique. While they may want to forsake the wooden form of judicial opinion writing (issue, facts, law, application, conclusion), they must, in some way, maintain the dignity and integrity that, at least in part, gives the judiciary its legitimacy” (Adalberto Jordan, Imagery, Humor, and the Judicial Opinion, 41 U Miami L Rev 693, 695 n 11 [1987]).

Pesce, P.J., Solomon and Elliot, JJ., concur.

Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), dated February 19, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, and plaintiff opposed the motion. Insofar as is relevant to this appeal by defendant, the District Court denied defendant’s motion and held that the only issue for trial was defendant’s defense of lack of medical necessity.

In support of its motion, defendant submitted, among other things, an affirmed medical report by the doctor who had performed the orthopedic independent medical examination (IME) on defendant’s behalf. The report set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the treatment at issue (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U] [App Term, 9th & 10th Jud Dists 2012]; Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]). In opposition to the motion, plaintiff submitted an affidavit by its principal, who did not indicate that she had examined the assignor or otherwise offer any medical evidence to rebut the conclusions set forth in the IME report. Thus, plaintiff failed to raise a triable issue of fact as to medical necessity (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff has not challenged the District Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50155[U] [App Term, 9th & 10th Jud Dists 2012]).

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated October 4, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based on the failure of plaintiff’s assignor to appear for scheduled examinations under oath (EUOs). The District Court denied the motion, finding that, although defendant had established that it had timely denied plaintiff’s claims, defendant had failed to show an objective justification for scheduling EUOs of plaintiff’s assignor. This appeal by defendant ensued.

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affirmation of its counsel, which affirmation established that the EUO scheduling letters had been sent to plaintiff’s assignor in accordance with counsel’s law office’s standard practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]). Defendant also proffered an affirmation by the attorney who was scheduled to conduct the first EUO, and a certified transcript of the follow-up EUO, which established that plaintiff’s assignor had failed to appear at either of the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124). The opposing affirmation of plaintiff’s counsel was insufficient to raise a triable issue of fact.

An appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722). Contrary to the determination of the District Court, no provision of No-Fault Regulation 68 requires an insurer to set forth any objective standards for requesting an EUO (see Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 9th & 10th Jud Dists 2014]). As plaintiff does not allege, let alone establish, that it or its assignor responded in any way to defendant’s EUO requests at issue, plaintiff’s objections regarding the EUO requests [*2]will not now be heard (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.

Decided on May 1, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d’Auguste, J.), entered March 22, 2013, deemed from a judgment of the same court entered August 22, 2013 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 22, 2013 order granting defendants’ motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, the order entered March 22, 2013 is vacated, and defendants’ motion for summary judgment is denied.

Plaintiff Geico General Insurance Company (Geico) commenced this subrogation action against defendants Class 1 Transport and Laurel E. Stone to recover the sum of $6,330.60, representing the amount paid for property damage to, and loss of use of, the subrogors’ vehicle as a result of an accident involving that vehicle and defendants’ vehicle. The complaint alleged that the accident was due to the negligence of defendants in the ownership, operation, maintenance, management and control of their vehicle. Prior to the commencement of this action, Geico had paid first-party no-fault benefits to its insured, and had sought to recoup those benefits from Daily Underwriters of America (DUOA), defendants’ insurer, pursuant to Insurance Law § 5105, through mandatory loss-transfer arbitration conducted by Arbitration Forums, Inc. (AFI). The AFI arbitrator determined that Geico was not entitled to recover from DUOA because Geico had not demonstrated any negligence on the part of DUOA’s insureds. As Geico had not proven liability, no damages were awarded.

After issue was joined in this action, defendants moved for summary judgment dismissing the complaint on the ground that the AFI arbitrator’s decision precluded plaintiff, based on collateral estoppel, from litigating this action. Plaintiff opposed the motion, referring to section (d) (5) of AFI’s NY Personal Injury Protection Rule Revisions, which provides: “A decision of an arbitrator on the liability issue is conclusive only of the controversy in the claim submitted to the arbitrator by the same parties and has no legal effect on any other claim or suit arising out of the same accident or occurrence between different parties.” Plaintiff appeals from an order entered March 22, 2013, in which the Civil Court granted defendants’ motion, upon a finding that the AFI arbitrator’s decision on liability barred plaintiff from bringing this action. A judgment was subsequently entered, from which plaintiff’s appeal is deemed to have been taken [*2](see CPLR 5501 [c]).

“[I]n general the doctrines of claim preclusion and issue preclusion between the same parties (more familiarly referred to as res judicata or direct estoppel) apply as well to awards in arbitration as they do to adjudications in judicial proceedings” (Matter of American Ins. Co. [Messinger—Aetna Cas. & Sur. Co.], 43 NY2d 184, 189-190 [1977]). Explicit restrictions in the arbitration rules, however, may limit the carry-over effect of the arbitration ruling (see id. at 193; see also Feinberg v Boros, 17 AD3d 275, 276 [2005]; Matter of State Farm Ins. Co. v Smith, 277 AD2d 390, 390-391 [2000]). The AFI rule limiting the preclusive effect of its arbitrator’s decision was clear and unambiguous, and should be given effect (see also Government Empls. Ins. Co. v Town of Oyster Bay, 26 Misc 3d 34 [App Term, 9th & 10th Jud Dists 2009] [AFI rule then in effect operated to preclude the application of the doctrine of collateral estoppel respecting the arbitrator’s decision in a separate judicial proceeding]). Consequently, defendants’ motion for summary judgment dismissing the complaint on collateral estoppel grounds should have been denied.

Accordingly, the judgment is reversed, the order entered March 22, 2013 is vacated, and defendants’ motion for summary judgment is denied.

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