[*1] Decided on March 29, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
571027/10.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about December 10, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered on or about December 10, 2009, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant’s documentary submissions established prima facie, that it duly mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]). Plaintiff’s contention that defendant failed to prove the mailing of the IME notices to the assignor’s attorney is unavailing absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 29, 2011

[*1] Decided on March 24, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., Hunter, Jr., J.
570324/10

Shulman, J.P., Hunter, Jr., J.

Allstate Insurance Company,NY County Clerk’s No. Petitioner-Appellant,570324/10 -against- Alexandre DeMoura a/a/oCalendar No. 10-162 Miriam Cruceta, Respondent-Respondent. Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), dated March 16, 2009, which denied its petition to vacate an arbitration award in favor of respondent awarding him unpaid no-fault benefits in the principal sum of $11,170.42, and granted respondent’s cross petition to confirm the arbitration award. Per Curiam. Order (Tanya R. Kennedy, J.), dated March 16, 2009, reversed, without costs, and matter remanded to Civil Court for a framed issue hearing regarding whether the $50,000 limit of the subject insurance policy was exhausted before petitioner-insurer was obligated to pay respondent’s claim. When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co. v Sawh, 272 AD2d 245 [2000]). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30-day period (New York & Presby. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]), and an arbitrator’s award directing payment in excess of the $50,000 limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 822 [1998]; Countrywide Ins. Co. v Sawh, 272 AD2d at 245; 11 NYCRR 65-1.1). Moreover, as petitioner-insurer correctly argues, such error “will not be waived if the party relying on it asserts it . . . in opposition to an application for confirmation” (Matter of Brijmohan v State Farm Ins. Co., 92 NY2d at 822). Here, petitioner’s submissions on its motion to vacate the arbitration award and in opposition to respondent’s cross motion to confirm the award raised a triable issue of fact regarding whether the $50,000 policy limit had been exhausted before payment could be made to respondent on its claim (see 11 NYCRR 65-3.15). Therefore, we remand the matter to Civil Court for a framed issue hearing on that issue. We note that petitioner’s remaining arguments are without merit. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concurI concur Decision Date: March 24, 2011

MARCH 24, 2011
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
								June 2010 Term

Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), dated March 16, 2009, which denied its petition to vacate an arbitration award in favor of respondent awarding him unpaid no-fault benefits in the principal sum of $11,170.42, and granted respondent’s cross petition to confirm the arbitration award.

Per Curiam.

Order (Tanya R. Kennedy, J.), dated March 16, 2009, reversed, without costs, and matter remanded to Civil Court for a framed issue hearing regarding whether the $50,000 limit of the subject insurance policy was exhausted before petitioner-insurer was obligated to pay respondent’s claim.

When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co. v Sawh, 272 AD2d 245 [2000]). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30-day period (New York & Presby. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]), and an arbitrator’s award directing payment in excess of the $50,000 limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 822 [1998]; Countrywide Ins. Co. v Sawh, 272 AD2d at 245; 11 NYCRR 65-1.1). Moreover, as petitioner-insurer correctly argues, such error “will not be waived if the party relying on it asserts it . . . in opposition to an application for confirmation” (Matter of Brijmohan v State Farm Ins. Co., 92 NY2d at 822).

Here, petitioner’s submissions on its motion to vacate the arbitration award and in opposition to respondent’s cross motion to confirm the award raised a triable issue of fact regarding whether the $50,000 policy limit had been exhausted before payment could be made to respondent on its claim (see 11 NYCRR 65-3.15). Therefore, we remand the matter to Civil Court for a framed issue hearing on that issue.

We note that petitioner’s remaining arguments are without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]

I concurI concur
Decision Date: March 24, 2011

[*1] Decided on March 17, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-2025 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 13, 2009, deemed from a judgment of the same court entered September 11, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 13, 2009 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

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 that plaintiff’s action was premature, inasmuch as plaintiff had failed to provide requested verification of the claim. Plaintiff opposed the motion. By ordered entered August 13, 2009, the Civil Court granted defendant’s motion for summary judgment, and this appeal by plaintiff ensued. A judgment was subsequently entered, from which this appeal is deemed to be taken (see CPLR 5501 [c]).

The affidavit of defendant’s litigation claims examiner established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) in accordance with defendant’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]). The mere denial by plaintiff’s medical biller of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests (see Schmiemann v State Farm Fire & Cas. Co., 13 AD3d 514 [2004]; Morales v Yaghoobian, 13 AD3d 424 [2004]; Truscello v Olympia Constr., 294 AD2d 350 [2002]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant’s motion for [*2]summary judgment dismissing the complaint was properly granted, as defendant’s time to pay or deny the claims had not begun to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

Accordingly, the judgment is affirmed. We reach no other issue.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 17, 2011

[*1] Decided on March 15, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2009-2342 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 16, 2009, deemed from a judgment of the same court entered October 26, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 16, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,498.75.

ORDERED that the judgment is reversed, without costs, so much of the order entered September 16, 2009 as granted 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, the Civil Court granted a motion by plaintiff for summary judgment and denied a cross motion by defendant for summary judgment dismissing the complaint, due to the failure of defendant’s claims examiner to explain the handwritten additions to defendant’s denial of claim forms. The instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

The affidavit submitted by defendant’s claims examiner in opposition to plaintiff’s motion and in support of defendant’s cross motion was sufficient to establish that defendant’s claim denial forms, which denied plaintiff’s claims on the ground that the equipment provided was not medically necessary, were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The fact that there were handwritten notations on the claim denial forms did not [*2]affect their validity, and defendant was not, under these circumstances, required to provide a further explanation.

In addition, the affirmed peer review reports submitted by defendant’s doctors were sufficient to establish a lack of medical necessity as they provided a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the medical equipment at issue (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]). Contrary to plaintiff’s assertions, the fact that the peer reviewers took into consideration medical records of other providers in formulating their opinions did not render the peer review reports inadmissible (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Since defendant established, prima facie, a lack of medical necessity for the equipment in question, the burden shifted to plaintiff to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]). In opposition to defendant’s cross motion, plaintiff submitted an affirmation from a doctor, which was sufficient to raise a triable issue of fact as to medical necessity (see Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; cf. 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]). In view of the foregoing, plaintiff’s motion for summary judgment should have been denied, and we leave undisturbed the denial of defendant’s cross motion.

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: March 15, 2011

[*1] Decided on March 15, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2009-1991 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 21, 2009. The order granted defendant’s motion, in effect, to vacate a notice of levy and sale of defendant’s property.

ORDERED that the order is affirmed, without costs, and the matter is remitted to the Civil Court for the entry of a corrected judgment in accordance with the decision herein.

In this action to recover assigned first-party no-fault benefits, the Civil Court (Diccia T. Pineda-Kirwan, J.), after a nonjury trial, awarded plaintiff “the sum of $10,196 plus statutory interest and attorney’s fees.” Thereafter, plaintiff filed a proposed judgment which included, among other things, the sum of $4,259.42 in attorney’s fees.

On October 24, 2006, defendant filed a “Rejection of Proposed Judgment.” In that rejection, defendant stated, insofar as is relevant to this appeal, that the award of attorney’s fees should be limited to the sum of $850. On October 30, 2006, plaintiff received two checks from defendant, one in the amount of $27,173 (representing the principal plus interest) and one in the amount of $915 (representing attorney’s fees of $850 plus filing fees), which plaintiff deposited. On December 4, 2006, a judgment was entered in favor of plaintiff, which included, among other things, the sum of $4,259.42 in attorney’s fees. Thereafter, plaintiff submitted the judgment to the marshal’s office for collection of the balance due thereunder, and the marshal sent a notice of execution to defendant. Upon receiving the notice, defendant moved, in effect, to vacate the notice of levy and sale of its property. By order entered July 21, 2009, the Civil Court (Maureen A. Healy, J.) granted defendant’s motion. This appeal by plaintiff ensued.

A review of defendant’s moving papers indicates that defendant sought to challenge so much of the judgment as had awarded plaintiff attorney’s fees in the sum of $4,259.42. In LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (12 NY3d 217 [2009]), the Court of [*2]Appeals reversed an order of the Appellate Division, Third Department (46 AD3d 1290 [2007]), which had held that attorney’s fees in a no-fault action should be calculated on a per-claim, not a per-assignor, basis. Giving effect to an opinion letter of the Superintendent of Insurance (Ops General Counsel NY Ins. Dept. No. 03-10-04 [Oct. 2003]) which interpreted the Insurance Department regulation (Insurance Department Regulations [11 NYCRR] § 65-4.6) establishing the amount of statutory attorney’s fees (Insurance Law § 5106 [a]) to be awarded, the Court of Appeals held that attorney’s fees in no-fault actions are to be calculated based on the aggregate of all of the bills submitted by a provider with respect to each insured in any action, up to a maximum of $850. Since the regulation and the opinion letter of the Superintendent of Insurance fixing the proper method for calculating the amount to be awarded as attorney’s fees pursuant to the regulation were extant at the time the judgment in the case at bar was entered; the Appellate Division ruling had not yet been handed down; the issue of the proper calculation of the attorney’s fees due plaintiff had not at that time been determined by the court; and the assessment of the statutory attorney’s fees pursuant to the Insurance Department regulation was, in essence, a ministerial matter, the clerk’s mistake in entering a judgment which included attorney’s fees in the sum of $4,259.42 was properly subject to correction by the Civil Court pursuant to CPLR 5019 (see Kiker v Nassau County, 85 NY2d 879 [1995] cf. Bank of NY v Carlucci, 289 AD2d 349 [2001] [where attorney’s fees are not statutorily fixed, an award of attorney’s fees is a substantive part of a judgment not subject to correction pursuant to CPLR 5019 (a)]). Accordingly, the order is affirmed and the matter is remitted to the Civil Court for the entry of a corrected judgment awarding plaintiff attorney’s fees in the sum of $850.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: March 15, 2011

[*1] Decided on March 3, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2009-1770 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered June 3, 2009. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant opposed plaintiff’s motion for summary judgment, arguing that it had timely denied plaintiff’s claims on the ground of lack of medical necessity based upon a peer review report. The Civil Court denied plaintiff’s motion. This appeal by plaintiff ensued.

Plaintiff established that defendant did not pay plaintiff’s claim. However, plaintiff failed to establish that the claim was not denied within 30 days (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Plaintiff attached a copy of a portion of defendant’s denial of claim form to its motion papers, but this copy did not establish that defendant did not deny the claim within 30 days, since the date of the denial of claim form was not contained in the portion of the form annexed to plaintiff’s papers. Moreover, plaintiff’s affiant did not provide the date on which the denial of claim form was received by plaintiff. Furthermore, the reason for defendant’s denial of the claim was also not included in the annexed portion of the form. As plaintiff failed to show that the claim was not denied within 30 days or that the basis for the denial was conclusory, vague or had no merit as a matter of law, it failed to make a prima facie showing of its entitlement to judgment as a matter of law (see Westchester Med. Ctr., 78 AD3d 1168). As a result, we need not consider the sufficiency of defendant’s paper’s submitted in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the [*2]
order denying plaintiff’s motion for summary judgment is affirmed, albeit on a different ground.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: March 03, 2011

[*1] Decided on March 2, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered December 17, 2009. The order denied defendant’s motion to dismiss the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint for lack of personal jurisdiction since the purported service of the summons and complaint under CPLR 312-a was never completed, as defendant never signed and returned an acknowledgment of service. Plaintiff opposed the motion, arguing that defendant should be compelled to sign the acknowledgment or, in the alternative, that plaintiff should be permitted to serve the summons and complaint by another manner. The Civil Court denied defendant’s motion, and this appeal ensued.

The record reveals that an acknowledgment of receipt was never signed by defendant and returned to plaintiff. “If the acknowledgment of receipt is not mailed or returned to the sender, the sender is required to effect personal service in another manner” (Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]; see also Patterson v Balaquiot, 188 AD2d 275 [1992]). Plaintiffs did not effect service in another manner. Accordingly, the service was defective and defendant’s motion to dismiss the complaint should have been granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: March 02, 2011

[*1] Decided on March 2, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2009-2523 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 29, 2009, deemed from a judgment of the same court entered November 16, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 29, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $4,335.

ORDERED that the judgment is reversed, without costs, the order entered October 29, 2009 is vacated, plaintiff’s motion for summary judgment is denied 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

In support of its cross motion for summary judgment, defendant submitted an affidavit of an employee of Crossland Medical Services, P.C. (Crossland), the entity which scheduled the IMEs involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been 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 [*2]Jud Dists 2007]). In addition, an affidavit executed by defendant’s litigation examiner demonstrated that the denial of claim forms, which had denied the claims based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted affirmations from its examining physicians and affidavits from its examining chiropractors, who stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. As a result, 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]). Inasmuch as plaintiff submitted only a reply affirmation from its counsel, which affirmation failed to raise a triable issue of fact, defendant’s cross motion for summary judgment dismissing the complaint should have been granted. In light of the foregoing, we need not reach the parties’ remaining contentions.

Accordingly, the judgment is reversed, the order entered October 29, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: March 02, 2011

[*1] Decided on February 14, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2009-2328 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered September 10, 2009. 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 affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing that there was a lack of
coverage because the injuries allegedly sustained by plaintiff’s assignor did not arise
out of an insured incident. The Civil Court denied both plaintiff’s motion and defendant’s cross motion, finding that triable issues of fact existed. Defendant appeals from so much of the order as denied its cross motion for summary judgment.

Defendant’s proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]), and the special investigator’s affidavit relied, in part, upon the police accident report, such proof did not establish, as a matter of law, that the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) so as to warrant the granting of summary judgment dismissing [*2]the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 14, 2011

[*1] Decided on February 14, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2009-2180 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 20, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without 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 on the ground that plaintiff had failed to appear for scheduled examinations under oath (EUOs) or, in the alternative, that plaintiff’s action was premature, in that plaintiff had not provided requested additional verification. Plaintiff submitted no written opposition to defendant’s motion. The Civil Court denied defendant’s motion, finding that the EUO scheduling letters were inadequate because they did not delineate the place and location of the EUO in a conspicuous manner, “i.e. bold or larger font,” and that defendant had failed to establish plaintiff’s nonappearance at the EUOs. This appeal by defendant ensued.

The affidavits submitted by defendant established that the EUO scheduling letters were timely mailed in accordance with the affiants’ employers’ standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic [*2]Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation from one of its attorneys, who was responsible for conducting the EUOs at issue. He alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s former law office for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Such an appearance at an EUO is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR]
§ 65-1.1; Stephen Fogel Psychological, P.C., 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]). Further, contrary to the Civil Court’s determination, there is no requirement that EUO scheduling letters conspicuously highlight the time and place of the EUO by use of, among other things, a bold or larger font (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]). Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. In light of the foregoing, we reach no other issue.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: February 14, 2011