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 (Wavny Toussaint, J.), dated October 29, 2009. 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 the branches of plaintiff’s motion seeking summary judgment with respect to so much of the complaint as sought to recover upon a claim for $612.59, and a claim for $167.07 for services rendered September 8, 2006 through September 19, 2006, are denied and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims are granted; as so modified, the order is affirmed, without costs.

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

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case upon the five claims for which plaintiff was awarded summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

The affidavits submitted by defendant established that plaintiff’s claims for $612.59, $167.07 (for services rendered on August 15, 2006) and $167.07 (for services rendered September 8, 2006 through September 19, 2006) had been 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]) on the ground that the assignor had failed to appear at independent medical examinations (IMEs).

Defendant established its prima facie entitlement to summary judgment dismissing so much of the complaint as sought to recover upon claims in the amount of $612.59 and $167.07 (for services rendered September 8, 2006 through September 19, 2006). Defendant submitted an affidavit which established that the IME scheduling letters had been timely mailed to the assignor by Independent Physical Exam Referrals in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, [*2]P.C., 17 Misc 3d 16). Defendant also submitted an affirmation by the physician who was to perform the IMEs, which stated that the assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff failed to rebut defendant’s prima facie showing, defendant is entitled to summary judgment upon these claims.

However, with respect to the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s $167.07 claim for services rendered on August 15, 2006, defendant failed to submit an affidavit from someone with personal knowledge to establish that plaintiff’s assignor had failed to appear for scheduled IMEs on July 27, 2006 and August 10, 2006 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; see also South Nassau Orthopedic Surgery v Auto One Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51300[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As a result, we do not disturb so much of the order as awarded plaintiff summary judgment with respect to this claim.

Since defendant also failed to establish that it had timely denied plaintiff’s $668.28 claim (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), we do not disturb so much of the order as awarded plaintiff summary judgment with respect to this claim. Lastly, in light of defendant’s concession that it did not timely deny plaintiff’s $222.76 claim, we find no basis to disturb so much of the order as awarded plaintiff summary judgment with respect to this claim.

Accordingly, the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment with respect to so much of the complaint as sought to recover upon a claim for $612.59, and a claim for $167.07 for services rendered September 8, 2006 through September 19, 2006, are denied and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims are granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, January 14, 2013

APPEARANCES OF COUNSEL

Freiberg, Peck & Kang, LLP, New York City (Yilo J. Kang of counsel), for appellant. Mandell & Santora, Lynbrook (Eitan Nof of counsel), for respondent.

{**38 Misc 3d at 57} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, and the complaint is dismissed.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the parties’ attorneys stipulated that plaintiff had established a prima facie case regarding the submission of his claim in the amount of $1,310.94; that, some time after the receipt of plaintiff’s claim, defendant, a Florida insurer, had issued letters rescinding plaintiff’s assignor’s insurance policy ab initio on the ground that material misrepresentations had been made during the application process; and that defendant had refunded the assignor’s premiums. The parties’ attorneys further stipulated to the admission into evidence of plaintiff’s claim form, defendant’s rescission letter, the policy application, and the insurance policy. Finally, the parties agreed that the sole issue for the Civil Court to decide was “whether or not Defendant has to establish the reason for rescinding its policy.” After trial, the Civil Court found for plaintiff, holding that New York law applied and that defendant was required, but failed, to present evidence in support of the underlying basis for its rescission of the policy. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5512 [a]).

Contrary to the conclusion of the Civil Court, New York law does not govern this matter. Rather, applying a “grouping of contacts” analysis (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]), we find that Florida law applied since Florida had the most significant contacts with the contracting party and the contract (see also W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Florida Statutes Annotated § 627.409 permits the retroactive rescission of an insurance policy if there has been a material misrepresentation in an application for insurance. Where, as{**38 Misc 3d at 58} here, an insurer is not seeking a judicial decree of rescission in the action, but, rather, is seeking to establish that the policy had, in fact, been retroactively rescinded to a time prior to the commencement of the action, the insurer must simply demonstrate that it complied with the Florida statute by giving the requisite notice of the rescission to the insured and that it returned or tendered all premiums paid within a reasonable time after the discovery of the grounds for avoiding the policy (see Leonardo v State Farm Fire & Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also W.H.O. Acupuncture, P.C., 36 Misc 3d 4). Given the posture of this case, the insurer, under Florida law, does not have the burden of proving its good faith basis for the termination of the insurance policy (see generally Castellon v American Skyhawk Ins. Co., 785 So 2d 552 [Fla Dist Ct App, 3d Dist 2001] [cancellation of policy]). As the parties stipulated that the sole issue for trial was whether the insurer had to establish the reason for its rescission of the policy, and it was therefore essentially conceded that defendant had given notice of the rescission to the insured and had returned all premiums, defendant is entitled to judgment dismissing the complaint. We reach no other issue.

Accordingly, the judgment is reversed and the complaint is dismissed.

Rios, J. (dissenting and voting to affirm the judgment in the following memorandum). Plaintiff commenced this action to recover assigned first-party no-fault benefits. Plaintiff’s assignor was insured under an automobile insurance policy issued in the State of Florida, which contained a provision allowing for the retroactive cancellation of the policy if the policyholder made a “false, misleading” statement in the application for insurance. Six months following the accident involving plaintiff’s assignor, defendant disclaimed coverage based on its decision to void the policy ab initio. At trial, the insurance company presented no evidence other than its conclusion that the policy had been cancelled.

As the insurance policy was contracted in Florida, that state’s laws regarding cancellation are applicable (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]). While Florida law allows for the retroactive cancellation of an automobile policy based on a material misrepresentation (see Fla Stat Ann § 627.409), the courts of Florida require the production of evidence that establishes the material misrepresentation.{**38 Misc 3d at 59}

An insurer seeking to rescind a policy pursuant to Florida Statutes Annotated § 627.409 must prove detrimental reliance on the false statement (see Griffin v American Gen. Life & Acc. Ins. Co., 752 So 2d 621 [Fla Dist Ct App, 2d Dist 1999]; Boca Raton Community Hosp., Inc. v Brucker, 695 So 2d 911 [Fla Dist Ct App, 4th Dist 1997]), and it is for the trier of fact to determine if the breach is material (see United Servs. Auto. Assn. v Clarke, 757 So 2d 554 [Fla Dist Ct App, 4th Dist 2000]). In applying Florida law to the issue of cancellation, the Appellate Division held that sufficient evidence was required to demonstrate that the policy would not have been issued but for the misrepresentation (see Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855 [2009]).

Here, no competent evidence was presented to establish the claim of misrepresentation other than the conclusion of the insurer (see Matter of Centennial Ins. Co. v Capehart, 220 AD2d 499 [1995]; Matter of Electric Ins. Co. v Woods, 101 AD2d 840 [1984]; Viuker v Allstate Ins. Co., 70 AD2d 295 [1979]; Sanchez v Maryland Cas. Co., 67 AD2d 681 [1979]; see also Penaranda v Progressive Am. Ins. Co., 747 So 2d 953 [Fla Dist Ct App, 2d Dist 1999]). Therefore, I would affirm the judgment in favor of plaintiff on this ground.

Pesce, P.J., and Aliotta, J., concur; Rios, J., dissents in a separate memorandum.

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered February 27, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered February 27, 2012, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to the assignor and his attorney, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 27, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated February 17, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), dated February 17, 2012, insofar as appealed from, reversed, without costs, motion granted in toto and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) and examinations under oath (EUOs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 24, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), entered March 28, 2012, which denied its cross motion for summary judgment on the complaint.

Per Curiam.

Order (Margaret A. Chan, J.), entered March 28, 2012, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The record raises several triable issues, including whether the amounts of the timely denied claims properly reflected plaintiff’s apparent status as a surgical facility or were otherwise in excess of the rates set forth in the governing fee schedule (see MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69 [2011]). Plaintiff waived any purported defect in the affidavit of defendant’s adjuster by failing to contest its admissibility (see Akamnonu v Rodriguez, 12 AD3d 187 [2004]). The new arguments raised in plaintiff’s reply papers, even if properly considered (cf. Henry v Peguero, 72 AD3d 600, 602 [2010], appeal dismissed 15 NY3d 820 [2010]), failed to eliminate all triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur.
Decision Date: December 24, 2012

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

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated May 3, 2011. The order denied plaintiffs’ motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, the District Court properly denied plaintiffs’ motion for summary judgment on the ground that plaintiffs had not demonstrated their prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]).

Accordingly, the order is affirmed.

LaCava, J.P., Nicolai and LaSalle, JJ., concur. [*2]
Decision Date: December 21, 2012

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

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated February 28, 2011. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the District Court as denied plaintiff’s motion for summary judgment. Plaintiff’s moving papers failed to establish a prima facie entitlement to judgment as a matter of law because the affidavit submitted by plaintiff’s billing manager was insufficient to establish either that defendant had failed to pay or deny the claims at issue within the requisite 30-day period, or that defendant had issued timely denial of claims that were 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]; New York Diagnostic Med. Care, P.C. v GEICO Cas. Ins. Co., 35 Misc 3d 131[A], 2012 NY Slip Op 50681[U] [App Term, 9th & 10th Jud Dists 2012]). In view of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is affirmed. [*2]

Molia, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: December 21, 2012

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 (Jodi Orlow, J.), entered January 3, 2011. The order denied plaintiff’s motion for leave to renew its prior 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, by order entered July 29, 2010, the Civil Court granted plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint to the extent of finding that plaintiff had “established its prima facie case in that the subject bills were timely submitted and remain unpaid” and defendant had “established that it timely denied the subject bills,” and that “[t]here remains a triable issue of fact as to the medical necessity of the services rendered. The parties shall proceed to trial on this issue only.” Thereafter, by order entered January 3, 2011, the Civil Court denied plaintiff’s subsequent motion, pursuant to CPLR 2221 (e) (2), for leave to renew its prior motion for summary judgment on the ground that the holding in Excel Imaging, P.C. v MVAIC (27 Misc 3d 141[A], 2010 NY Slip Op 50998[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) created new law which required an insurer to issue denial of claim [*2]forms in duplicate. Plaintiff appeals from the latter order.

The Civil Court properly denied plaintiff’s motion for leave to renew since the holding of Excel Imaging, P.C. did not constitute a change in the law (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c] [1]; New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 21, 2012

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 (Terrence C. O’Connor, J.), entered October 25, 2010, deemed from a judgment of the same court entered December 6, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 25, 2010 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,342.94.

ORDERED that the judgment is reversed, with $30 costs, the order entered October 25, 2010 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross 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 entered October 25, 2010 which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment, finding that defendant’s denials were nullities because they had not been issued in duplicate (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c] [1]). A [*2]judgment awarding plaintiff the principal sum of $2,342.94 was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit by an employee of National Claim Evaluations, Inc. (NCEI), an entity which had scheduled independent medical examinations (IMEs) of plaintiff’s assignor on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with NCEI’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]). Defendant also submitted an affidavit by the chiropractor/acupuncturist who was to perform the IMEs which established that plaintiff’s assignor had failed to appear for the scheduled IMEs. An
affidavit executed by defendant’s litigation examiner demonstrated that denial of claim forms, which denied the claims based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed to plaintiff, plaintiff’s assignor, and plaintiff’s assignor’s attorney (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).

Insurance Department Regulations (11 NYCRR) § 65-3.8 (c) (1) requires that, upon deciding to deny a claim, “the insurer shall notify the applicant or the authorized representative on the prescribed denial of claim form, in duplicate.” Plaintiff has offered no argument as to why defendant’s mailing of each denial of claim form to plaintiff, plaintiff’s assignor and plaintiff’s assignor’s attorney, respectively, does not satisfy this requirement. Accordingly, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since plaintiff failed to raise a triable issue of fact, defendant’s motion for summary judgment dismissing the complaint should have been granted.

Accordingly, the judgment is reversed, the order entered October 25, 2010 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 21, 2012

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 (Katherine A. Levine, J.), entered May 24, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon a $70 claim for a thermophore is granted and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim 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 appeals from an order of the Civil Court which denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond v [*2]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]) the claim at issue on the ground of lack of medical necessity. Moreover, defendant annexed to its motion papers an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies provided, with the exception of a thermophore, which the peer reviewer found to be medically necessary (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, 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]). On appeal, defendant concedes that plaintiff is entitled to recover upon so much of plaintiff’s complaint as sought $70 for the thermophore.

In opposition to defendant’s cross motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not submit an affirmation from a doctor rebutting the conclusions set forth in the peer review report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Thus, the Civil Court properly granted the branches of defendant’s cross motion seeking summary judgment dismissing the remainder of the complaint.

Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon the $70 claim for a thermophore is granted and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim is denied.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: December 21, 2012