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, Queens County (Maureen A. Healy, J.), entered November 23, 2011. The order, insofar as appealed from, denied defendant’s motion for summary judgment, granted the branches of plaintiff’s cross motion seeking summary judgment upon the third, fourth, sixth and seventh causes of action, and found that the only triable issue of fact for trial with respect to the remaining first, second and fifth causes of action was whether defendant had timely mailed proper independent medical examination scheduling letters to plaintiff. So much of the appeal as is from the portion of the order which denied the branches of defendant’s motion seeking summary judgment dismissing the third, fourth, sixth and seventh causes of action, and granted the branches of plaintiff’s cross motion seeking summary judgment upon those causes of action, is deemed to be from a judgment of the same court entered December 23, 2011 awarding plaintiff the principal sum of $1,255.33 (see CPLR 5512 [a]).

ORDERED that the judgment is affirmed, without costs; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second and fifth causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits,
defendant appeals from so much of an order of the Civil Court entered November 23, 2011 as denied defendant’s motion for summary judgment, granted the branches of plaintiff’s cross motion seeking summary judgment upon the third, fourth, sixth and seventh causes of action, and found that the only issue of fact for trial with respect to the remaining first, second and fifth causes of action was whether defendant had timely mailed proper independent medical examination (IME) scheduling letters to plaintiff. A judgment was subsequently entered pursuant to the order, awarding plaintiff the principal sum of $1,255.33.

In support of its motion, defendant submitted an affidavit from an employee of the company that had been retained by defendant to schedule the IMEs. The affidavit established that the IME scheduling letters had been timely mailed to plaintiff’s assignor in accordance with the company’s standard office practices and procedures (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]). Contrary to the Civil Court’s order, it was not necessary to mail the scheduling letters to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b], [c] 65-3.6 [b]). Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second and fifth causes of action should have been granted (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

With respect to the claims at issue in plaintiff’s third, fourth, sixth and seventh causes [*2]action, defendant failed to show that it had denied the underlying claims or to otherwise raise a triable issue of fact. To the extent that defendant argues that it is nevertheless entitled to summary judgment upon these claims, defendant is mistaken, as defendant’s defense, based upon the assignor’s failure to appear for IMEs, is subject to preclusion if defendant failed to timely deny these claims (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009] see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011] but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). As a result, there is no basis to disturb the judgment entered upon plaintiff’s third, fourth, sixth and seventh causes action.

Accordingly, the judgment is affirmed, and the order, insofar as reviewed on direct appeal, is reversed and the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second and fifth causes of action are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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, Queens County (Genine D. Edwards, J.), entered December 15, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted only with respect to so much of the complaint as sought to recover upon the unpaid portion of the claim for dates of service August 3, 2007 through August 25, 2007; as so modified, the order is affirmed, without costs.

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

Contrary to plaintiff’s contention, the affidavits submitted in support of defendant’s motion for summary judgment were sufficient to establish that defendant had timely denied (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]) plaintiff’s claims either pursuant to the workers’ compensation fee schedule or on the ground of lack of medical necessity. The affidavit submitted by defendant’s employee established that, as to plaintiff’s claim for dates of service August 3, 2007 through August 25, 2007 seeking the sum of $235.90, defendant had paid $134.80 thereof and had denied the remaining $101.10 on the ground that the amount billed by plaintiff exceeded the fees allowed by the workers’ compensation fee schedule. With respect to plaintiff’s remaining claims, defendant submitted a sworn statement by the chiropractor who had performed an independent medical examination (IME), which set forth a factual basis and medical rationale for the chiropractor’s conclusion that there was a lack of medical necessity for further treatment. In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint.

In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact with regard to the unpaid portion of the claim for dates of service August 3, 2007— August 25, 2007. Thus, defendant is entitled to summary judgment with respect thereto. However, plaintiff did submit, among other things, a letter of medical necessity sworn to by plaintiff’s treating chiropractor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered (see Zuckerman v City of New York, 49 NY2d 557 [1980] Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Dists 2010]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted only with respect to so much of the complaint as sought to recover upon the unpaid portion of the claim for dates of service August 3, 2007 [*2]through August 25, 2007.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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, Queens County (William A. Viscovich, J.), entered November 17, 2011, deemed from a judgment of the same court entered December 14, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2011 order 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

On appeal, plaintiff argues that the affidavits submitted by defendant failed to establish that defendant’s employees possessed sufficient personal knowledge to demonstrate that defendant’s denial of claim form had been timely mailed. This argument is improperly raised for the first time on appeal.

Plaintiff further argues that one of the affidavits submitted by defendant in order to prove that the denial of claim form had been timely mailed should not have been considered because it did not comply with CPLR 2309 (c). However, that argument is raised for the first time on appeal, and is therefore waived (see Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008] Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]). In any event, such defect is not fatal, as plaintiff was not prejudiced thereby (Matos v Salem Truck Leasing, 105 AD3d 916 [2013] Rivers v Birnbaum, 102 AD3d 26, 44 [2012]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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 (Reginald A. Boddie, J.), entered October 20, 2011. The order denied plaintiff’s unopposed motion for leave to enter a default judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CPLR 3215, for leave to enter a default judgment based upon defendant’s failure to appear in the action or answer the complaint. The motion was unopposed. The Civil Court denied plaintiff’s motion, finding that plaintiff had not established its prima facie case.

Plaintiff’s moving papers failed to establish either that defendant failed to pay or deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., ___ AD3d ___, 2013 NY Slip Op 08430 [2d Dept 2013]), or that defendant issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a] Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). As a result, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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

Appeal from an order of the District Court of Nassau County, First District (Terence P. Murphy, J.), entered June 1, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion to compel defendant to respond to plaintiff’s discovery demands.

ORDERED that the order is reversed, without costs, defendant’s motion for summary judgment dismissing the complaint is denied with leave to renew after the completion of discovery, plaintiff’s cross motion to compel defendant to respond to plaintiff’s discovery demands is granted, and defendant is directed to serve responses to plaintiff’s discovery demands within 60 days of the date of this decision and order.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion on the ground that defendant had failed to respond to plaintiff’s discovery demands and that defendant’s responses were necessary to oppose defendant’s motion (see CPLR 3212 [f]). Plaintiff also cross-moved to compel defendant to provide the requested discovery (see CPLR 3124). The District Court granted defendant’s motion and denied plaintiff’s cross motion.

“CPLR 3212 (f) provides, in relevant part, that a court may deny a motion for summary judgment should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated. This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion” (Jones v American Commerce Ins. Co., 92 AD3d 844, 845 [2012] [internal quotation marks and citations omitted]). Here, in support of its motion for summary judgment dismissing the complaint on the ground of lack of medical necessity, defendant alleged that it had timely denied plaintiff’s claims on that ground based on two peer review reports. In opposition to defendant’s motion, and in support of its cross motion to compel discovery, plaintiff demonstrated that it had requested from defendant, but had not received, the medical documentation underlying defendant’s decision to deny the claims based on lack of medical necessity, and that plaintiff needed such discovery to oppose defendant’s motion (see Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., ___ Misc 3d ___[A], 2013 NY Slip Op 52246[U] [App Term, 2d, 11th & 13th Jud Dists 2013] Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011] compare Elmont Open MRI & Diagnostic Radiology, P.C. v Travelers Indem. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52223[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant’s motion should have been denied with leave to renew following discovery, and plaintiff’s cross motion granted (see Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., ___ Misc 3d ___[A], 2013 NY Slip Op 52246[U]).

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing [*2]the complaint is denied with leave to renew after the completion of discovery, plaintiff’s cross motion to compel defendant to respond to plaintiff’s discovery demands is granted, and defendant is directed to serve responses to plaintiff’s discovery demands within 60 days of the date of this decision and order.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: March 10, 2014

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, March 5, 2014

APPEARANCES OF COUNSEL

Law Office of Jeff Henle, P.C., New York City (Jeff Henley of counsel), for appellant.

Jaffe & Koumourdas, LLP, New York City (Jean H. Kang of counsel), for respondent.

Ordered that, on the court’s own motion, the notice of appeal from the amended decision dated September 15, 2010 is deemed a premature notice of appeal from so much of the judgment entered January 26, 2012 as awarded statutory prejudgment interest from August 7, 2008 (see CPLR 5520 [c]); and it is further ordered that the judgment, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in 2001, based upon an accident that had occurred in 1998. It is undisputed that for the next seven years, no action was taken by either party. On August 7, 2008, plaintiff filed a notice of trial. A nonjury trial was subsequently held, after which the Civil Court found in favor of plaintiff. However,{**43 Misc 3d at 89} based on plaintiff’s delay of the case, the Civil Court held that statutory prejudgment interest would accumulate from the date plaintiff filed his notice of trial, on August 7, 2008. Plaintiff filed a notice of appeal from that decision, limited to the Civil Court’s decision to award interest from August 7, 2008. A judgment was subsequently entered, including interest commencing as of August 7, 2008 at a simple, not compound, rate. We deem the appeal to have been taken from so much of the judgment as awarded interest from August 7, 2008.

[1] First, contrary to plaintiff’s argument on appeal, defendant did prove the timely mailing of the denial. Where, as here, a provider does not commence the action within 30 days of receipt of the denial, the Insurance Department Regulations provide that statutory prejudgment interest (see Insurance Law § 5106 [a]) begins to accumulate when the action is commenced (see Insurance Department Regulations [11 NYCRR] § 65-3.9 [c]), “unless the applicant unreasonably delays the . . . court proceeding” (Insurance Department Regulations [11 NYCRR] § 65-3.9 [d] [emphasis added]). In this case, plaintiff took no action for seven years. Plaintiff’s argument that defendant should be required to pay interest for that period because defendant could have attempted to move the case forward lacks merit. It is plaintiff who brought this action and plaintiff should not be rewarded for his years of inaction by receiving a windfall of interest (see Arzu v NYC Tr. Auth., 35 Misc 3d 210 [Civ Ct, Kings County 2012]; compare Igor Shtarkman Neurologist, P.C. v Allstate Ins. Co., 191 Misc 2d 76 [Nassau Dist Ct 2002]). Thus, in our opinion, the Civil Court properly held that the interest in this case should be awarded from August 7, 2008.

[2] On appeal, plaintiff also contends that interest should have been calculated at a compound, not simple, rate. However, the decision from which plaintiff appealed did not specify whether the interest awarded should be simple or compound, and the award of simple, rather than compound, interest is found only in the judgment, which was entered subsequent to the filing of the notice of appeal. Moreover, the notice of appeal limited the appeal to the court’s determination regarding the date on which interest would begin to accumulate. Therefore, the issue of whether the interest should be calculated at a simple or compound rate is not reviewable on this appeal. As this issue was not litigated below and as there has been no prior judicial determination of this question, plaintiff, if he be so advised, may move, pursuant to CPLR 5019 (a), to seek a correction of{**43 Misc 3d at 90} the interest in the judgment (see Kiker v Nassau County, 85 NY2d 879, 881 [1995]; see also former Insurance Department Regulations [11 NYCRR] § 65.15 [h] [1]; Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; Ops Gen Counsel NY Ins Dept No. 02-10-22 [Oct. 2002]).

Accordingly, the judgment, insofar as appealed from, is affirmed.

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

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, Queens County (Richard G. Latin, J.), entered September 14, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is granted, defendant’s motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

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 misrepresenting the state in which the vehicle at issue was garaged. Plaintiff separately moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s motion.

The record indicates that plaintiff established its prima facie entitlement to summary judgment (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010] Ave T MPC Corp v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and that defendant failed to demonstrate that it had timely denied plaintiff’s claim. With respect to defendant’s motion for summary judgment, although defendant contends that, in connection with the issuance of the insurance policy at issue, plaintiff’s assignor had misrepresented the state where the insured vehicle was garaged, defendant is precluded from asserting that defense in support of its motion and in opposition to plaintiff’s motion as it failed to establish that it had timely denied plaintiff’s claim on that ground (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011] cf. Central Radiology Servs., P.C. v Commerce Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50948[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is reversed, plaintiff’s motion is granted, defendant’s motion is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder. [*2]

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014

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 (Reginald A. Boddie, J.), entered August 16, 2012. 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 its motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for an examination under oath (EUO).

In support of its motion, defendant was required, but failed, to demonstrate that its initial and follow-up requests for EUOs of plaintiff had been timely mailed (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b] 65-3.6 [b]), as the record is devoid of any reference to the dates on which defendant had received plaintiff’s claim forms. Consequently, defendant failed to demonstrate that it had tolled its time to pay or deny the claims, and, thus, that it is not precluded from raising its proffered defense that plaintiff had failed to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997] Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). In view of the foregoing, the Civil Court properly denied defendant’s motion (see NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702 [2011] Westchester Med. Ctr., 60 AD3d 1045).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014

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, Queens County (Richard G. Latin, J.), entered July 17, 2012. The order granted the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking dismissal of the complaint pursuant to CPLR 3126.

In this action to recover assigned first-party no-fault benefits, plaintiff filed a notice of trial on August 5, 2009. In August of 2010, the case was marked off the trial calendar, and in September of 2011, defendant moved to dismiss the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 on the ground that plaintiff had abandoned the case by failing to move to restore it to the trial calender within one year after it was stricken. Defendant moved, in the alternative, to dismiss the complaint pursuant to CPLR 3126, on the ground that plaintiff had failed to provide requested disclosure. Plaintiff appeals from an order of the Civil Court which granted the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14.

Contrary to defendant’s assertion, the Civil Court rule which governs actions stricken from the calendar (Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14) has no provision for dismissing a complaint as abandoned (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454, 456 [2007]). Thus, the Civil Court erred in dismissing the complaint on this ground.

Defendant moved, in the alternative, to dismiss the complaint pursuant to CPLR 3126. Since the Civil Court did not address this branch of defendant’s motion, the matter is remitted to the Civil Court for a determination thereof.

Accordingly, the order is reversed, the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking dismissal of the complaint pursuant to CPLR 3126.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014

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 (Genine D. Edwards, J.), entered June 11, 2012. The order denied defendant’s motion to vacate a judgment and for leave to renew and reargue its cross motion for summary judgment dismissing the complaint and its opposition to plaintiff’s motion for summary judgment.

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, and defendant cross-moved for summary judgment dismissing the complaint on the ground that, among other things, plaintiff’s assignor had breached a condition of the policy by failing to appear for scheduled independent medical examinations. By order entered January 25, 2011, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding that an affidavit submitted by defendant was inadmissible since the affiant’s signature was not notarized. A judgment awarding plaintiff the principal sum of $5,880.51 was subsequently entered pursuant to the order. Defendant thereafter moved to vacate the judgment and for leave to renew and reargue its cross motion and its opposition to plaintiff’s motion, and resubmitted the affidavit in properly sworn form. By order entered June 11, 2012, the Civil Court denied defendant’s motion, and we affirm.

While the Civil Court determined that the submission of the notarized affidavit
did not constitute new evidence sufficient to support a motion for leave to renew,
“CPLR 2221 (e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form” (Schwelnus v Urological Assoc. of L.I., P.C., 94 AD3d 971, 972 [2012] see also Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391 [2008]). “The key to qualifying such corrected evidence for treatment on a renewal motion is reasonable justification’ for failing to present it on the prior motion (CPLR 2221 [e] [3])” (Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d at 391). In the present case, we leave undisturbed the Civil Court’s denial of the branch of defendant’s motion seeking leave to renew its cross motion and its opposition to plaintiff’s motion, as defendant failed to set forth a reasonable justification for its initial failure to submit a properly sworn affidavit (see CPLR 2221 [e] [3] Singh v Mohamed, 54 AD3d 933 [2008]). We note that the branch of defendant’s motion seeking leave to reargue its cross motion and its opposition to plaintiff’s motion was untimely (see CPLR 2221 [*2][d] [3]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014