Plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County,(Jennifer G. Schecter, J.), dated July 16, 2013, as granted defendant’s motion for summary judgment dismissing plaintiff’s no-fault claim in the amount of $355.

Per Curiam.

Order (Jennifer G. Schecter, J.), dated July 16, 2013, insofar as appealed from, reversed, with $10 costs, and plaintiff’s claim for first-party no-fault benefits in the amount of $355 reinstated.

Defendant’s motion for summary judgment dismissing plaintiff’s first-party no-fault claim seeking payment of $355 – stemming from acupuncture services rendered by plaintiff on December 1, 2009, December 10, 2009 and January 7, 2010 – should have been denied. Defendant failed to demonstrate, prima facie, that its denials were properly mailed (see Country-Wide Ins. Co. v Zabloski, 257 AD2d 506 [1999]). In this regard, the affidavit submitted by an employee of Farmers Insurance Exchange, defendant’s claims administrator, failed to adequately describe its office mailing procedures (see Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375 [1987]), merely stating that items placed in its “mail bin” are picked up by a nonparty entity – Pitney Bowes Services, Inc. (“Pitney Bowes”) – which brings the items on a daily basis to the post office. The affiant professed no personal knowledge of, nor did she attempt to describe, the procedures utilized by Pitney Bowes to assure timely and proper delivery. Nor were these deficiencies remedied by defendant’s submission in its reply papers below of an affidavit from a Pitney Bowes representative (see Batista v Santiago, 25 AD3d 326 [2006]).

Moreover, even beyond defendant’s shortcomings in proof concerning the mailing issue, the report of defendant’s peer review acupuncturist failed to set forth sufficient facts or medical rationale for his stated conclusion that further acupuncture treatment of plaintiff’s assignor was not medically necessary. That the assignor may have subjectively reported during the course of the peer review examination that she “feels worse” after three months of acupuncture treatment did not, by itself and without any objective medical explanation by the peer reviewer, eliminate [*2]all triable issues regarding the medical necessity of continued acupuncture treatment.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered April 15, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Jennifer G. Schecter, J.), entered April 15, 2013, reversed, with $10 costs, motion denied and complaint reinstated.

The action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal. The defendant insurer failed to establish, prima facie, that it did not timely receive the plaintiff provider’s no-fault claim. In this regard, defendant relied on the affidavit of a claims representative employed in the Hicksville, New York office of non-party Farmers Insurance Exchange (“Exchange”), the entity which “administers claims” on defendant’s behalf. Although the affiant averred that there was no record of the underlying no-fault claim in his office’s paper and computer files, he professed no personal knowledge of the practice and procedures put in place by defendant in connection with the handling of no-fault claims sent to its Oklahoma City office, the designated mailing address for the submission of such claims (see Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613, 614 [2010]).

In any event, plaintiff, in opposition, raised a triable issue as to the mailing of the claim by producing a stamped mailing certificate tending to support its assertion that it timely mailed the no-fault claim to defendant at its designated Oklahoma City address (see LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727 [2006]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 4, 2012. The judgment, entered pursuant to an order of the same court granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff appeals from a judgment which was subsequently entered dismissing the complaint.

Contrary to plaintiff’s contentions on appeal, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff does not claim to have responded in any way to the EUO requests; therefore, plaintiff’s objections on appeal regarding those requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 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]). Plaintiff’s remaining contentions lack merit.

Accordingly, the judgment is affirmed.

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

Decision Date: December 11, 2014

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Leonard Scholnick, J.H.O.), entered August 8, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $791.35.

ORDERED that the judgment is affirmed, with $25 costs.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, among other things, that plaintiff had satisfied its prima facie burden. The sole issues before the Civil Court were whether defendant had timely sent letters scheduling examinations under oath and whether defendant had timely denied plaintiff’s claims. After counsel for the parties discussed the facts underlying the issues with the court, defense counsel did not call any witnesses. The court awarded judgment to plaintiff.

Inasmuch as the parties stipulated to plaintiff’s prima facie case and defendant failed to present any evidence, there is no basis to reverse the judgment (see Dilon Med. Supply Corp. v Travelers Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50737[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 25, 2012. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

Plaintiffs commenced this action to recover assigned first-party no-fault benefits in September 2008. On June 25, 2011, defendant served a 90-day notice pursuant to CPLR 3216 (b) (3). Plaintiffs did not file a notice of trial, move to vacate the 90-day notice, or move to extend the 90 days. In April 2012, defendant moved to dismiss the complaint pursuant to CPLR 3216. The Civil Court denied defendant’s motion.

Except under circumstances not presented here, a plaintiff seeking to avoid dismissal pursuant to CPLR 3216 is required to demonstrate both a justifiable excuse for its delay and a meritorious cause of action (see CPLR 3216 [e]; Belson v Dix Hills Air Conditioning, Inc., 119 AD3d 623 [2014]; Davis v Goodsell, 6 AD3d 382, 384 [2004]; Lama v Mohammad, 29 Misc 3d 68 [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, plaintiffs’ attorney’s conclusory statement that bills had been submitted to defendant and had not been paid within 30 days of their submission was insufficient to demonstrate the merit of plaintiffs’ case (see Sortino v Fisher, 20 AD2d 25 [1963]; Lama, 29 Misc 3d 68; Comeau v McClacken, 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d & 11th Jud Dists 2004]). Moreover, plaintiff did not commence this action upon a verified complaint (CPLR 105 [U]).

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

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

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Ann E. O’Shea, J.), dated October 17, 2011, as granted plaintiffs’ cross motion for summary judgment on the complaint.

Per Curiam.

Order (Ann E. O’Shea, J.), dated October 17, 2011, affirmed, with $10 costs.

Plaintiffs-providers established prima facie their entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by defendant-insurer and that payment of the no-fault benefits was overdue (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8 [a][1]; Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313 [2008]).

In opposition, defendant failed to raise a triable issue. Although defendant showed that it timely denied the claim on the ground of medical necessity, it failed to submit the IME report upon which its denial was based or any other evidentiary proof to support its defense of medical necessity (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]; Mollins v Allstate Ins. Co., 20 Misc 3d 141[A], 2008 NY Slip Op 51616[U][App Term, 1st Dept 2008]; cf. NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190 [2011]). In the absence of “evidentiary facts” showing that a “bona fide” issue exists (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1979]) as to the medical necessity of the services here at issue, plaintiff’s cross motion for summary judgment was properly granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 30, 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 appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint on the ground that the out-of-state affidavit of defendant’s claims analyst submitted in support of the motion was not accompanied by a certificate of conformity. While plaintiff timely objected to the form of defendant’s affidavit, in that it did not comply with the requirements of CPLR 2309 (c), the absence of a certificate of conformity is not a fatal defect (see Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Bey v Neuman, 100 AD3d 581 [2012]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), as the defect may be corrected nunc pro tunc or disregarded pursuant to CPLR 2001 (see Midfirst Bank v Agho, __ AD3d __, 2014 NY Slip Op 05778 [2d Dept 2014]).

Nevertheless, we find that the affidavit of defendant’s claims analyst was not in proper admissible form for a different reason, to wit, that the notary public never stated therein that the claims analyst had personally appeared before her and was personally known to her or had satisfactorily established her identity (see Galetta v Galetta, 21 NY3d 186 [2013]; see also Fryer v Rockefeller, 63 NY 268 [1875]; Gross v Rowley, 147 App Div 529 [1911]; cf. Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). As we do not consider the factual assertions contained in that document, we find no basis to disturb the Civil Court’s denial of defendant’s motion.

Accordingly, the order is affirmed.

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

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered February 27, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. d’Auguste, J.), entered February 27, 2013, reversed, with $10 costs, motion denied, and complaint reinstated.

The action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal since defendant “failed to . . . establish that the denial of claim form was in fact mailed to the plaintiff” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564-565 [2005]; see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011]). The affidavit submitted by the defendant insurer to establish proof of mailing – identifying the affiant as a “mailroom representative” of a nonparty to this action, State-Wide Insurance Company (“State-Wide”) – neither stated that the affiant actually mailed the claim denial to plaintiff nor, so far as appears, described defendant’s mailing office practice and procedures (see New York and Presbyterian Hospital v Allstate Ins. Co., 29 AD3d 547 [2006]), as opposed to those generally followed by State-Wide. Conspicuously absent from defendant’s moving submission was any allegation or showing that a jural relationship existed between defendant and State-Wide. Given these shortcomings in defendant’s proof, we have no occasion to consider whether defendant’s purported mailing of the claim denial to the individual treating acupuncturist rather than the employing professional corporation was proper (see 11 NYCRR 65-3.8[c])

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered September 17, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. d’Auguste, J.), entered September 17, 2013, modified by reinstating plaintiff’s claim for first-party no-fault benefits in the sum of $1,259.53; as modified, order affirmed, without costs.

The affidavits and other documentary evidence submitted by defendant established prima facie that defendant timely denied that portion of plaintiff’s first-party no-fault claim seeking payment of $1,182.53 – stemming from acupuncture services rendered by plaintiff during the period October 1, 2009 through October 21, 2009 – on the ground that the fees plaintiff charged exceeded the amount permitted by the applicable workers’ compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture v Geico Ge. Ins. Co., 16 Misc 3d 23 [2007]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial form issued in connection with this claim or the calculation of the fee. Accordingly, defendant’s motion, insofar as it sought to dismiss the $1,182.53 claim – representing the difference between the amount charged for the services rendered and payment made to plaintiff pursuant to the fee schedule – was properly granted.

However, defendant failed to establish its entitlement to summary dismissal of plaintiff’s remaining claim of $1,259.53, since its motion papers below failed to address the validity of this claim.

We note, in passing, that while plaintiff’s complaint and defendant’s moving papers below did not make clear that two distinct no-fault claims are involved in this litigation, both the record as a whole and the parties’ appellate briefs plainly establish that point.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered August 9, 2013, as denied, in part, its motion for summary judgment dismissing the complaint, and, upon searching the record, granted summary judgment in favor of plaintiff in the principal sum of $2,175.

Per Curiam.

Order (James E. d’Auguste, J.), entered August 9, 2013, insofar as appealed from, affirmed, with $10 costs.

We agree that the peer review report relied upon by the defendant-insurer was insufficient to establish, as a matter of law, that the acupuncture services underlying plaintiff’s $2,175 no-fault claim lacked medical necessity. The report addressed the medical necessity of acupuncture services rendered to plaintiff’s assignor during a time frame prior to that covered by the bills sued upon here, with defendant’s peer reviewer basing his finding of a lack of medical necessity on narrow grounds, viz., the perceived vagueness of the provider’s initial acupuncture report and treatment notes. In such form, and since defendant’s peer reviewer stopped short of concluding that the assignor’s medical condition could never be shown to warrant further acupuncture treatments, his report cannot be read so broadly as to justify, without more, the denial of any and all future claims for acupuncture services rendered to the assignor. Thus, summary judgment dismissal of this claim was properly withheld.

In the absence of a cross appeal by plaintiff, the propriety of the dismissal of plaintiff’s remaining claim is not properly before us.