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.

Decision Date: May 01, 2015

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.

Decision Date: May 01, 2015

[*1]

Lenox Hill Radiology & MIA, P.C. v Great N. Ins. Co.

2015 NY Slip Op 50680(U) [47 Misc 3d 143(A)]

Decided on May 1, 2015

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 1, 2015

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

PRESENT: : GARGUILO, J.P., MARANO and CONNOLLY, JJ.
2013-2049 N C

Lenox Hill Radiology and MIA, P.C. as Assignee of SAMIR GEMAYEL, Respondent,

against

Great Northern Insurance Company Doing Business as CHUBB GROUP OF INSURANCE COMPANIES, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated July 31, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint.

Defendant established that the denial of claim forms, which denied the claims on the ground of lack of medical necessity, had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). While the affirmed peer review report by defendant’s doctor set forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for the services at issue, plaintiff proffered a doctor’s affirmation in opposition, which affirmation was sufficient to raise a triable issue of fact as to whether the services were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, defendant’s motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order is affirmed.

Garguilo, J.P., Marano and Connolly, JJ., concur.

Decision Date: May 01, 2015

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.

Decision Date: May 01, 2015

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz,J.), entered November 28, 2012. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3216, to dismiss the complaint based upon plaintiff’s failure to prosecute the action. Plaintiff opposed the motion, contending that it had been prosecuting the action and that only about four months had elapsed since defendant’s motion for summary judgment had been denied by the Civil Court. The Civil Court denied defendant’s motion, finding that, since only four months had passed from the time plaintiff had served defendant with a copy of the order denying defendant’s motion for summary judgment, with notice of entry, dismissal pursuant to CPLR 3216 was not warranted.

Once a 90-day demand is received by a plaintiff, in a Civil Court action, the plaintiff must either comply with the demand by filing a notice of trial within 90 days (see CPLR 3216 [c]), or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2008]). Since plaintiff failed to do either of these, it was required, in opposition to defendant’s motion to dismiss, to establish a justifiable excuse for its delay in properly responding to the 90-day demand, and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43).

As plaintiff notes, in Baczkowski (89 NY2d at 503), the Court of Appeals stated that CPLR 3216 is “extremely forgiving” and, “depending on the circumstances, a plaintiff is not always required to establish both a justifiable excuse and a potentially meritorious cause of action to avoid such a dismissal” (see Davis v Goodsell, 6 AD3d 382, 383-384 [2004]). However, the Court of Appeals further stated:

“If plaintiff fails to demonstrate a justifiable excuse, the statute says the court may’ dismiss the action—it does not say must’ (see, CPLR 3216 [e])—but this presupposes that plaintiff has tendered some excuse in response to the motion in an attempt to satisfy the statutory threshold.
Although a court may possess residual discretion to deny a motion to dismiss when plaintiff tenders even an unjustifiable excuse, this discretion should be exercised sparingly to honor the balance struck by the generous statutory protections already built into CPLR 3216. Even such exceptional exercises of discretion, moreover, would be reviewable within the Appellate Division’s plenary discretionary authority. If plaintiff unjustifiably fails to comply with the 90-day requirement, knowing full well that the action can be saved simply by filing a note of issue but is subject to dismissal otherwise, the culpability for the resulting dismissal is squarely placed at the door of plaintiff or plaintiff’s counsel. Were courts routinely to deny motions to dismiss even after plaintiff has ignored the 90-day period without an adequate excuse, the procedure established by CPLR 3216 would be rendered meaningless” (Baczkowski, 89 NY2d at 504-505).

In the instant case, in opposition to defendant’s motion to dismiss the complaint, plaintiff made no attempt to demonstrate the existence of an excuse, justifiable or otherwise, for plaintiff’s failure to comply with the 90-day notice. Nor did plaintiff make any attempt to demonstrate that it possessed a meritorious cause of action.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

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

Decision Date: May 01, 2015

[*1]

Velocity Chiropractic, P.C. v Chubb Indem. Ins. Co.

2015 NY Slip Op 50673(U) [47 Misc 3d 142(A)]

Decided on May 1, 2015

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 1, 2015

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2012-2730 Q C

Velocity Chiropractic, P.C. as Assignee of JOSHUA FUENTES, Respondent,

against

Chubb Indemnity Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered October 26, 2012. The order, insofar as appealed from, denied defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, on June 22, 2012, the parties entered into a so-ordered stipulation pursuant to which

plaintiff agreed to serve defendant with verified responses to defendant’s written discovery demands within 80 days of the date of the order or be precluded from offering such evidence. After plaintiff failed to provide the so-ordered discovery responses, defendant moved pursuant to CPLR 3126 to strike the complaint and dismiss the action, asserting that plaintiff had failed to timely provide it with the so-ordered discovery responses; that, as a consequence, plaintiff was precluded from offering any evidence; and that, therefore, plaintiff could not establish its prima facie case. In opposition, plaintiff admitted that its responses had been served late but asserted that the delay was due to law office failure and that defendant was not prejudiced by the delay. The Civil Court denied defendant’s motion, stating that it was preferable to resolve the case on the merits and holding that the accrual of interest was tolled during the time period in which plaintiff’s so-ordered discovery responses were untimely.

A conditional so-ordered stipulation becomes absolute upon a party’s failure to sufficiently and timely comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]; Blumenthal Chiropractic, P.C. v Praetorian Ins., 34 Misc 3d 135[A], 2011 NY Slip Op 52386[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). To avoid the adverse impact of the conditional so-ordered stipulation, plaintiff was required to demonstrate a reasonable excuse for its failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). We find that plaintiff failed to meet this burden. Plaintiff’s opposing affirmation made no attempt to demonstrate the existence of a meritorious cause of action and failed to present sufficient facts to establish a reasonable excuse for its failure to [*2]comply with the so-ordered stipulation. Accordingly, as the order of preclusion prevents plaintiff from establishing its prima facie case, the order is reversed and defendant’s motion to strike the complaint and dismiss the action is granted.

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

Decision Date: May 01, 2015

[*1]

Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co.

2015 NY Slip Op 50565(U) [47 Misc 3d 137(A)]

Decided on April 21, 2015

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 21, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
&em;

Orthopedic Specialist of Greater New York a/a/o Kennia Fernandez, Plaintiff-Respondent,

against

Chubb Indemnity Insurance Company, Defendant-Appellant.

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor), entered July 8, 2014, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor), entered July 8, 2014, insofar as appealed from, modified by granting defendant’s motion for summary judgment dismissing plaintiff’s claim in the sum of $212.37; as modified, order affirmed, without costs.

We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the orthopedic surgery underlying plaintiff’s first-party no-fault claim in the sum of $3,408.11. However, defendant made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claim in the sum of $212.37, by the affidavit of its claims adjuster demonstrating that plaintiff submitted the claim beyond the 45-day time limit for submission of claims (see 11 NYCRR 65-1.1[d]; Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]). Plaintiff’s opposing submissions failed to raise any triable issue. The affidavit of plaintiff’s office manager did not allege a personal mailing of the claim within the 45-day period or describe plaintiff’s regular office mailing practice and procedure (see Tower Ins. Co. of NY v Ray & Frank Liq. Store, 104 AD3d 482 [2013]; Westchester Med. Ctr. v. Countrywide Ins. Co., 45 AD3d 676, 677 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 21, 2015

[*1]

Renelique v Allstate Ins. Co.

2015 NY Slip Op 50609(U) [47 Misc 3d 140(A)]

Decided on April 16, 2015

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 16, 2015

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

PRESENT: : ALIOTTA, J.P., SOLOMON and ELLIOT, JJ.
2013-1882 Q C

Pierre Jean Jacques Renelique as Assignee of JOHN DEVIN, Appellant,

against

Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered July 31, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that defendant did not provide insurance coverage for the vehicle in question on the date of the accident at issue. By order entered July 31, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

In support of its cross motion and in opposition to plaintiff’s motion, defendant submitted an affidavit by its employee, who described the details of a record search which she had performed and stated that her search had revealed that there was no Allstate Insurance Company policy in effect on the date of the accident in question. We find that defendant’s affidavit was sufficient to demonstrate, prima facie, that plaintiff’s claim did not arise out of a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). As plaintiff failed to raise a triable issue of fact, the Civil Court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

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

Decision Date: April 16, 2015

[*1]

Jamaica Dedicated Med. Care. P.C. v Praetorian Ins. Co.

2015 NY Slip Op 50606(U) [47 Misc 3d 140(A)]

Decided on April 16, 2015

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 16, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1436 K C

Jamaica Dedicated Medical Care. P.C. as Assignee of LALBACHAN SOOKLALL, Respondent,

against

Praetorian Ins. Co., Appellant.

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 that plaintiff’s assignor, the insured, had fraudulently procured the insurance policy. Defendant appeals from an order entered January 24, 2013 which denied the motion.

For the reasons stated in Jamaica Dedicated Med. Care, P.C. as Assignee of Lalbachan Sooklall v Praetorian Ins. Co. ( Misc 3d , 2014 NY Slip Op [Appeal No. 2013-1345 K C], decided herewith), the order is affirmed.

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

Decision Date: April 16, 2015

[*1]

Jamaica Dedicated Med. Care. P.C. v Praetorian Ins. Co.

2015 NY Slip Op 50605(U) [47 Misc 3d 140(A)]

Decided on April 16, 2015

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 16, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1345 K C Jamaica Dedicated Medical Care. P.C. as Assignee of LALBACHAN SOOKLALL, Respondent,

against

Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered January 24, 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 that plaintiff’s assignor, the insured, had fraudulently procured the insurance policy. By order entered January 24, 2013, the Civil Court denied defendant’s motion due to defendant’s failure to annex to its motion papers a copy of the original insurance policy.

The Civil Court properly denied defendant’s motion, since defendant did not submit sufficient evidence in support of its motion to establish its entitlement to judgment as a matter of law. While the transcript of the insured’s testimony at an examination under oath (EUO) was admissible (see American States Ins. Co. v Huff, 119 AD3d 478 [2014]), the insured’s EUO testimony failed to eliminate all material issues of fact as to his actual residence at the time he procured the policy (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Furthermore, the investigative report submitted by defendant in support of its motion 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 the insured had fraudulently procured the insurance policy, defendant’s motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order is affirmed.

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

Decision Date: April 16, 2015