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.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered July 29, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered July 29, 2013, reversed, with $10 costs, motion denied and complaint reinstated.

The action, seeking recovery of assigned first-party no-fault benefits arising from a series of epidural injections administered by plaintiff in its Hackensack, New Jersey office, is not ripe for summary dismissal. Defendant’s moving submission below relied exclusively on a worker’s compensation fee schedule defense, and failed to address, much less refute the applicability of Insurance Department regulation (11 NYCRR) § 68.6, which provides that where, as here, a reimbursable health service “is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider.” Notably absent from defendant’s moving papers was any discussion of the proper “geographic location” of the plaintiff provider — which apparently maintains offices in both New York and New Jersey — or of the “prevailing fee” were such location determined to be in New Jersey. Defendant’s attempts to rectify these deficiencies in its reply papers below were untimely (see e.g. Ambac Assur. Corp. v DLJ Mtge. Capital, Inc., 92 AD3d 451, 452 [2012]) and, even if defendant’s newly raised arguments were considered, they create rather than eliminate genuine triable issues.

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 (Robert R. Reed, J.), entered November 26, 2012, which conditionally granted defendant’s motion to dismiss the complaint unless plaintiff complied with defendant’s notice of deposition.

Per Curiam.

Order (Robert R. Reed, J.), entered November 26, 2012, reversed, with $10 costs, and defendant’s motion denied.

The defendant-insurer failed to demonstrate entitlement to depositions relating to its excessive treatment and fee schedule defenses, in the absence of any affirmative showing that it preserved those defenses by timely denying plaintiff’s 2006 first-party no-fault claim (see Triangle R. Inc. v Progressive Ins. Co., 36 Misc 3d 151[A], 2012 NY Slip Op 51685[U][App Term, 1st Dept 2012]). In view of the foregoing, we need not and do not address plaintiff’s alternative argument that the noticed depositions were otherwise unwarranted.

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 (Ingrid Joseph, J.), entered November 20, 2012. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto.

The papers submitted by defendant were sufficient to establish that defendant had 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]) its denial of claim form, which denied the claim on the ground of the fraudulent procurement of the insurance policy in question by virtue of the assignor’s misrepresentation of his place of residence. Furthermore, defendant’s papers demonstrated that a triable issue of fact exists as to whether plaintiff’s assignor had provided a fraudulent address when he had obtained the insurance policy at issue. Consequently, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

With respect to defendant’s cross motion, upon the record before us, we find that defendant failed to make a prima facie showing of its entitlement to judgment dismissing the complaint as a matter of law.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

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