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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered January 13, 2010. The judgment, entered pursuant to a December 15, 2009 order of the same court granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the sum of $2,525.88.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered December 15, 2009 as granted plaintiff’s motion for summary judgment and as denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $1,755.42, $258.56, $42.51, $71.49, $196.79, $139.34 and $65.39 is vacated, plaintiff’s motion for summary judgment is denied and those branches of defendant’s cross motion are granted.

Plaintiff’s assignor, a New Jersey resident, was injured in a motor vehicle accident. The vehicle was insured by a New Jersey automobile insurance policy issued to plaintiff’s assignor, which policy provided that it is to be interpreted “pursuant to the laws of the state of New Jersey.” Plaintiff, a New York business entity, rendered medical services to the assignor in New York and submitted claims to defendant. Plaintiff subsequently commenced this action, alleging [*2]that payment of no-fault benefits on the 10 claims it had submitted to defendant was overdue and, thereafter, moved for summary judgment. In opposition to plaintiff’s motion, defendant argued that New Jersey law controlled and that, under New Jersey law, plaintiff had failed to establish its prima facie entitlement to summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that, in effect, the Civil Court lacked jurisdiction because, pursuant to New Jersey law and the New Jersey policy of insurance, the matter was required to be submitted to dispute resolution. In the alternative, defendant’s cross motion sought summary judgment dismissing the complaint on the ground that plaintiff was not entitled to recover no-fault benefits. The Civil Court, refusing to consider defendant’s out-of-state affidavit in support of its cross motion since defendant had failed to submit a certificate of conformity, by order entered December 15, 2009, granted plaintiff’s motion and denied defendant’s cross motion. Defendant appeals from a judgment, entered pursuant to the December 15, 2009 order, awarding plaintiff the sum of $2,525.88.

Contrary to defendant’s contention, the insurance policy in question does not provide for mandatory arbitration; rather, it merely states that a “matter shall be submitted to dispute resolution on the initiative of any party to the dispute.” Moreover, dispute resolution is not mandatory in the case at bar pursuant to NJSA § 39: 6A-5.1 (a), as implemented by NJAC § 11:3-5.1 (a) (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273 [2009]). Consequently, the branch of defendant’s cross motion seeking to dismiss, in effect, for lack of jurisdiction, was properly denied. Inasmuch as, on the record before us, neither party has sought to compel dispute resolution, we do not reach any other issue regarding the dispute resolution provision and its effect (see Advanced Med. Diagnostics of Queens. P.C. v GEICO Ins. Co., 38 Misc 3d 140[A], 2013 NY Slip Op 50219[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

The Restatement (Second) of Conflict of Laws § 187 (3) provides that, “[i]n the absence of a contrary indication of intention, the reference [to the law of the state chosen by the parties] is to the local law of the state of the chosen law” (IRB-Brasil Resseguros, S.A. v Inepar Invs., S.A., 20 NY3d 310, 316 [2012]). Consequently, the insurance contract’s provision requiring the policy, and any amendments, to be interpreted according to New Jersey law results in the application of New Jersey’s substantive law, not the application of conflict of law principles (see id.).

Inasmuch as plaintiff failed to establish, in the first instance, the medical necessity of the rendered services (see Elkins v New Jersey Mfrs. Inc. Co., 244 NJ Super 695, 583 A2d 409 [1990]), and failed to show that defendant did not properly pay any claim within 60 days after it had been furnished with written notice of the fact of a covered loss and the amount of same (see NJSA § 39:6A-5 [g]), under New Jersey law, plaintiff’s motion for summary judgment should have been denied. Moreover, the Civil Court should have considered the out-of-state affidavit of an employee of defendant’s claims division which defendant submitted in support of its cross motion despite the absence of a certificate of conformity as required by CPLR 2309 (c), since such a defect is not fatal (see e.g. Matos v Salem Truck Leasing, 105 AD3d 916 [2013]; Fredette v Town of South Hampton, 95 AD3d 940, 942 [2012]; Smith v Allstate Ins. Co., 38 AD3d 522, 523 [2007]). The relevant affidavit established that plaintiff’s claims for no-fault benefits in the amounts of $1,755.42, $258.56, $42.51, $71.49, $196.79, $139.34 and $65.39 had been paid by [*3]defendant in accordance with the applicable New Jersey fee schedule, within 60 days (see NJSA § 39:6A-5 [g]) after defendant had been furnished with written notice of the fact of a covered loss and of the amount of same. Inasmuch as plaintiff failed to rebut this showing as to the foregoing seven claims, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these seven claims should have been granted.

Accordingly, the judgment is reversed, so much of the order entered December 15, 2009 as granted plaintiff’s motion for summary judgment and as denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $1,755.42, $258.56, $42.51, $71.49, $196.79, $139.34 and $65.39 is vacated, plaintiff’s motion for summary judgment is denied and those branches of defendant’s cross motion are granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 09, 2013

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 9, 2013

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Mitchell L. Kaufman of counsel), for appellant. The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for respondent.

{**42 Misc 3d at 67} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, with $30 costs, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment. After judgment was entered awarding plaintiff the principal sum of $5,206.18, defendant appealed from the order. The notice of appeal from the order is deemed to be a notice of appeal from the judgment (see CPLR 5512 [a]).

Since defendant specifically declines, for the purposes of this appeal, to contest the Civil Court’s finding that plaintiff established its prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

The Civil Court determined that defendant had failed to raise a triable issue of fact based solely upon its finding that defendant had failed to establish that it had issued an NF-10 denial of claim form in duplicate. Insurance Department Regulations (11 NYCRR) § 65-3.8 (c) (1) requires that “[i]f the insurer denies a {**42 Misc 3d at 68}claim in whole or in part involving elements of basic economic loss . . . the insurer shall notify the applicant or the authorized representative on the prescribed denial of claim form, in duplicate.” The regulation further provides that, where a denial involves a portion of a health provider’s bill, the insurer may alternatively make such a denial on a form or letter approved by the Department of Insurance, which is also to be issued in duplicate (id.). This requirement is presumably met by enclosing two copies of the denial in the same envelope. While defendant alleged that it had mailed a denial of claim form which denied the claim at issue based upon a lack of medical necessity, it did not allege that it had enclosed two copies of that denial in the same envelope. The Civil Court therefore found, in effect, that defendant’s defense of lack of medical necessity was precluded because it was not preserved in proper duplicate copies of the denial of claim form submitted to plaintiff.

In Excel Imaging, P.C. v MVAIC (27 Misc 3d 141[A], 2010 NY Slip Op 50998[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), this court held that the defendant’s failure to prove that it had issued the denial in duplicate, an issue that had been raised by the plaintiff in opposition to the defendant’s motion for summary judgment, required the denial of the motion. This court relied upon the language in New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co. (32 AD3d 458, 460 [2006]), which was also an action by a provider to recover assigned first-party no-fault benefits. In Rusk, the defendants had partially paid and partially denied the plaintiff’s claim. The denial was timely, but, instead of using the prescribed denial of claim form (the NF-10 form), the defendants had used a letter to deny the claim. The Appellate Division, Second Department, noted that the defendants were permitted to use a letter in such circumstances (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c] [1]), but found that the defendants were nonetheless precluded from raising their asserted defenses, stating that the “defendants failed to establish that the letter had been issued in duplicate and approved by the Department of Insurance” (Rusk, 32 AD3d at 460).

On this appeal, plaintiff does not claim that the information contained in the prescribed denial of claim form was insufficient, conclusory or vague, nor does it contend that it was in any way deprived of prompt, specific notice as to the reasons for the denial. It is noted that, subsequent to Rusk, the Appellate Division has found that other errors in denials should not be{**42 Misc 3d at 69} considered fatal when such errors do not pose the possibility of any prejudice to the claimant (see e.g. NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2011] [finding that a denial was not “rendered a nullity” by possible errors when such errors “were not significant by themselves, and did not pose any possibility of confusion or prejudice to the (plaintiff) under the circumstances”]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1169 [2010] [“minor factual discrepancy” did not invalidate a denial which “was not conclusory or vague, and did not otherwise involve a defense which had no merit as a matter of law”]). Upon reviewing the language in Rusk, we note that the Appellate Division did not base its decision therein solely on the defendants’ failure to serve the denial in duplicate. Rather, the Court noted both that the defendants had failed to use the prescribed form for the denial without obtaining approval from the Department of Insurance for the letter they had used and that they had not issued the letter in duplicate. In Excel, this court, in effect, took the position that either one of the aforementioned grounds, standing alone, would constitute a fatal defect rendering the denial of claim a nullity. However, in light of the Appellate Division cases decided after Rusk, we are no longer of the opinion that the failure to send a denial in duplicate should, on its own, be considered a fatal error that would prevent a defendant from being able to raise any otherwise meritorious, but precludable, defenses.

This is especially true as we see no benefit that a claimant would obtain by receiving two copies of the same prescribed denial of claim form in the same mailing and, thus, we do not see any prejudice to a claimant if it does not receive such a duplicate copy (see Prime Psychological Servs., P.C. v American Tr. Ins. Co., 20 Misc 3d 844, 850 [Civ Ct, Richmond County 2008] [discussing the requirement of duplicate denials and stating that “since the regulations set forth that both the original (NF-10) form and its duplicate shall be served on the medical provider, the service of the duplicate (NF-10) is basically redundant”]; see also NYU-Hospital for Joint Diseases, 84 AD3d at 1191). To the extent that Excel Imaging, P.C. (27 Misc 3d 141[A], 2010 NY Slip Op 50998[U]) holds otherwise, it should no longer be followed.

As we find that defendant’s lack of medical necessity defense is not precluded, we turn to the merits of this defense. Defendant raised a triable issue of fact in opposition to plaintiff’s motion{**42 Misc 3d at 70} for summary judgment since the affidavits submitted by defendant established that it had timely issued the subject denial of claim form (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 Dept, 2d & 11th Jud Dists 2007]), and the sworn peer review report submitted by defendant set forth a factual basis and medical rationale for the determination that there was a lack of medical necessity for the services provided (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston and Rios, 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, Kings County (Reginald A. Boddie, J.), entered May 18, 2010. The order, insofar as appealed from, denied defendant’s cross motion to dismiss the complaint.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits in August of 2005. Defendant defaulted in answering. More than four years later, plaintiff moved for leave to enter a default judgment and defendant cross-moved to dismiss the complaint pursuant to CPLR 3215 (c). Defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion to dismiss the complaint.

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after the default, the plaintiff is obligated to offer a reasonable excuse for the delay in [*2]moving for leave to enter a default judgment, and must demonstrate that the complaint is meritorious, failing which the court, upon its own initiative or on motion, must dismiss the complaint as abandoned (CPLR 3215 [c]; see County of Nassau v Chmela, 45 AD3d 722 [2007]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624 [2005]). Although the determination of what constitutes a reasonable excuse lies within the sound discretion of the motion court, reversal is warranted if that discretion is improvidently exercised (see Staples v Jeff Hunt Devs., Inc., 56 AD3d 459 [2008]). In the present case, plaintiff’s bald and unsubstantiated claim of law office failure was insufficient to explain the four-year delay in moving for leave to enter a default judgment (see Costello v Reilly, 36 AD3d 581 [2007]). Thus, we find that the Civil Court improvidently exercised its discretion in denying defendant’s cross motion to dismiss the complaint as abandoned.

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion to dismiss the complaint is granted.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: December 03, 2013

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 (Carolyn E. Wade, J.), entered March 15, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 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 upon, among other things, plaintiff’s assignor’s failure to appear for scheduled examinations under oath (EUOs). In an order entered March 15, 2012, the Civil Court denied defendant’s motion on the ground that the certificate of conformity accompanying the affidavit, executed out of the state by defendant’s employee, was defective. Defendant appeals from the order and we reverse.

Defendant appropriately sought to cure the defect in its original certificate of conformity by annexing to its reply papers a certificate of conformity which rectified the defect (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). [*2]Although the Civil Court held that the corrected certificate of conformity was still not in proper form, we note that Real Property Law § 299-a (2) (a) specifically states that the signature on the certificate of conformity “shall be presumptively genuine” and the qualification of the person signing as a person authorized to make such certificate “shall be presumptively established by the recital thereof in the certificate.” As the certificate of conformity complied with the statutory requirements of Real Property Law § 299-a, the out-of-state affidavit which it accompanied should have been considered by the Civil Court and “treated as if taken within the state” (CPLR 2309 [c]).

In support of its motion for summary judgment, defendant submitted an affirmation from the attorney who had been responsible for conducting the EUOs at issue. His affirmation established that the EUO scheduling letters had been mailed to the assignor in accordance with his law firm’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]), and that, based on the attorney’s personal knowledge, the assignor had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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]). The affidavit submitted by defendant’s special claims representative and the out-of-state affidavit submitted by defendant’s centralized administrative team supervisor (which, as noted above, was accompanied by a proper certificate of conformity) together established that the denial of claim forms, which, among other things, denied plaintiff’s claims based upon the assignor’s failure to appear at the EUOs, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16).
Since an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and defendant established by admissible evidence plaintiff’s assignor’s noncompliance with this condition precedent, defendant’s motion should have been granted. Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: December 03, 2013

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 (Carmen R. Velasquez, J.), entered May 3, 2012, deemed from a judgment of the same court entered May 29, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 3, 2012 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion to dismiss the complaint, awarded plaintiff the principal sum of $5,486.66

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

In this action by a provider to recover assigned first-party no-fault benefits, the record indicates that, subsequent to the assignment of benefits from plaintiff’s assignor to plaintiff and the provision of services by plaintiff to its assignor, plaintiff commenced this action in the Civil Court, and plaintiff’s assignor commenced an arbitration proceeding for a determination of whether defendant Unitrin Direct Insurance Company or Arch Insurance Company should provide no-fault coverage to him. On March 23, 2011, plaintiff moved in this action for summary judgment, and the following day, the arbitrator issued a decision, which stated that, based upon the credible evidence before him, either defendant or Arch Insurance Company [*2]would be the source of first-party no-fault benefits. The arbitrator directed Arch Insurance Company to commence processing plaintiff’s claims, because that insurer had received notice of the claims first. Defendant opposed plaintiff’s motion and, based on the arbitrator’s decision, cross-moved to dismiss the complaint pursuant to CPLR 3212 and CPLR 3211 (a) (5). Plaintiff submitted opposition. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, we find that plaintiff established its prima facie entitlement to summary judgment by proof of the submission to defendant of the claim forms, proof of the fact and the amount of the loss sustained, and proof that defendant had failed to pay or deny the claims within the requisite 30-day period (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the burden shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion and in support of its own cross motion, defendant submitted the affirmation of its counsel, who argued, among other things, that plaintiff’s action is barred by the decision in the arbitration proceeding. However, plaintiff was not named in the arbitration and was not in privity with its assignor, who was a named party in that proceeding, as the assignment of benefits had been executed before the arbitration proceeding had been commenced, and plaintiff otherwise had no full and fair opportunity to appear and defend its interests in that proceeding. Consequently, the instant action is not subject to dismissal by virtue of the decision in the arbitration hearing (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co., 37 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2012]). As a result, defendant’s cross motion to dismiss the complaint was properly denied and plaintiffs motion for summary judgment was properly granted.

Accordingly, the judgment is affirmed.

Rios, J.P., Pesce and Solomon, JJ., concur.
Decision Date: November 29, 2013

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 (Pamela L. Fisher, J.), entered January 18, 2012. The order granted defendant’s motion to stay the action pending a final determination of a Supreme Court declaratory judgment action.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to stay the action, pursuant to CPLR 2201, pending a final determination of a declaratory judgment action that had been commenced by defendant in the Supreme Court, Nassau County, entitled Geico Ins. Co. v Andre (Index No. 8085/2011). In that action, Geico alleged that the defendants named therein had engaged in a large-scale illegal scheme involving staged accidents and fraudulent billing practices and therefore Geico sought a declaration that it was not obligated to pay, among other things, no-fault benefits to those defendants. Both plaintiff and its assignor are named as defendants in the declaratory judgment action.

“[A] court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources” (Zonghetti v [*2]Jeromack, 150 AD2d 561, 563 [1989]). Under the circumstances presented herein, it was not an improvident exercise of discretion for the Civil Court to grant defendant’s motion to stay this action pending the resolution of the Supreme Court declaratory judgment action (see CPLR 2201).

Accordingly, the order is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: November 29, 2013

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 (Johnny Lee Baynes, J.), entered December 1, 2011. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted on the condition that defendant, within 60 days of the date of this order and decision, serve upon plaintiff and file with the Clerk of the Civil Court, Kings County, an affidavit by Leigh Howie, identical to the affidavit by Leigh Howie submitted by defendant in support of its motion for summary judgment dismissing the complaint, accompanied by a certificate of conformity in compliance with CPLR 2309 (c) and Real Property Law § 299-a (1). In the event that defendant fails to duly serve and file such an affidavit, the order, insofar as appealed from, is affirmed, with $25 costs.

As is relevant to this appeal in an action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the [*2]ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant submitted an affidavit by an employee of Crossland Medical Review Services, Inc. (Crossland), an entity which had scheduled the IMEs on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with Crossland’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]). An affidavit by the chiropractor/acupuncturist who was to perform the IMEs established that plaintiff’s assignor had failed to appear for the scheduled IMEs. Defendant also submitted an affidavit by defendant’s claims representative, Leigh Howie, to demonstrate that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant appeals from so much of an order of the Civil Court as denied its motion.

The affidavit of Leigh Howie was executed out of state. Although it was accompanied by a document that purported to be a certificate of conformity, the certificate did not comply with Real Property Law § 299-a and, thus, the affidavit did not comply with CPLR 2309 (c) (see Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51629[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). While plaintiff timely objected to the form of defendant’s affidavit, a certificate of conformity can be given nunc pro tunc effect once the proper certificate is obtained (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Cosentino v Molina, 36 Misc 3d 130[A], 2012 NY Slip Op 51282[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, defendant’s motion for summary judgment dismissing the complaint should have been conditionally granted (see Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 26 Misc 3d 131[A], 2010 NY Slip Op 50043[U] [App Term, 1st Dept 2010]; see generally Sandoro v Andzel, 307 AD2d 706 [2003]).

Rios, J.P., Pesce and Solomon, JJ., concur.
Decision Date: November 29, 2013

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 (Pamela L. Fisher, J.), entered November 2, 2011. The order granted 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. Defendant’s motion papers set forth that defendant had timely denied the claims at issue based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s argument, the affirmation submitted by defendant established that the EUO scheduling letters had been timely mailed in accordance with its law firm’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]). Furthermore, while plaintiff argues that certain [*2]letters submitted by defendant, which purported to delay payment of the claims, were insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), in this case the EUO scheduling letters themselves were sufficient to toll the claim determination period.

Finally, plaintiff argues that the affidavit submitted by defendant in order to prove that the denial of claim forms 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]).

Accordingly, the order is affirmed.

Pesce, P.J., 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, Kings County (Dawn Jiminez Salta, J.), entered March 31, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the submission of the bills and the fact and the amount of the loss sustained.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $1,916.46 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, stating that the only issue for trial was the medical necessity of the services at issue (see CPLR 3212 [g]).

Contrary to defendant’s argument on appeal, plaintiff established the submission of the bills and the fact and amount of the loss sustained. We therefore do not disturb the Civil Court’s implicit finding that those facts had been established for all purposes in the action. To the extent that defendant argues that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued claim denials that were conclusory, vague, or without merit as a matter of law, this is an incorrect reading of the order, which directs that a trial be held on the issue of medical necessity.

In support of its cross motion, defendant submitted a peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for nerve testing performed on August 19, 2009, for which plaintiff billed $1,916.46. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $1,916.46 is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

However, with respect to a bill for $590.01 for other testing performed on August 19, 2009, defendant failed to demonstrate that these services were not medically necessary, as it relied upon an independent medical examination performed nearly one year later, which did not address these services.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $1,916.46 is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 September 13, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, stating that the only issue for trial was the medical necessity of the supply at issue (see CPLR 3212 [g]).

In support of its cross motion, defendant submitted a peer review report and an affidavit executed by the chiropractor who had performed the peer review, which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the medical supply at issue. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic [*2]Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013