SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered 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

SUPREME COURT OF THE STATE OF NEW YORK

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

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

SUPREME COURT OF THE STATE OF NEW YORK

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

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

SUPREME COURT OF THE STATE OF NEW YORK

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

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

SUPREME COURT OF THE STATE OF NEW YORK

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

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

SUPREME COURT OF THE STATE OF NEW YORK

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

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

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 27, 2009. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, a default judgment was entered against defendant on April 19, 2007. Defendant moved to vacate the default judgment, and the Civil Court denied defendant’s motion. This appeal by defendant ensued.

A defendant seeking to vacate a judgment entered upon its default in answering must demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Hodges v Sidial, 48 AD3d 633, 634 [2008]; Hageman v Home Depot U.S.A., Inc., 25 AD3d 760 [2006]). The determination of what constitutes a reasonable excuse lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]).

In the case at bar, defendant proffered no reasonable excuse as to why it served its answer late. Defendant merely asserted that, due to a clerical error, the caption of the answer it [*2]ultimately served was incorrect. However, the purported document, which listed the wrong assignor, could not properly be characterized as an answer to the complaint. Moreover, the foregoing error did not establish an excuse for the untimely service of the answer. According to a paralegal employed by defendant’s law firm, the answer was served on August 2, 2007, almost four months after the default judgment had been entered. In view of the lack of a reasonable excuse for defendant’s default, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519 [2007]). Accordingly, as the Civil Court did not improvidently exercise its discretion in denying defendant’s motion, the order is affirmed.

Pesce, P.J., and Weston, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the order and grant defendant’s motion to vacate the default judgment in the following memorandum:

Contrary to the holding of the majority, I find that defendant did establish a reasonable excuse for its default, as well as a meritorious defense.

In the first instance, it is clear that defendant, by its paralegal, Tahir Wright, committed law office failure. Ms. Wright’s job was to draft defendant’s answer to the complaint by cutting and pasting computer-generated documents. In this instance, she failed to notice that the computer had generated an incorrect caption due to the input of an incorrect file number and, in addition, failed to timely serve this document.

The answer, which was due on or before March 6, 2007, was apparently served on March 12, 2007. It was dated March 12, 2007, and the affidavit of service was also dated March 12, 2007. Nevertheless, the majority raises and relies on Ms. Wright’s
affidavit, which states that she caused the answer to be served on August 2, 2007. In fact, even plaintiff, which vigorously opposed any vacatur of defendant’s default, did not claim that the proposed answer was served after the default judgment had been entered.

I accept that the answer, which was dated March 12, 2007, as was the affidavit of service, was, in fact, served on March 12, 2007, a mere six days late. I do not give any weight to the incomprehensible statement of Ms. Wright when she asserts that the answer dated March 12, 2007 was not sent until August 2, 2007.

Further, I find that, contrary to the holding of the Civil Court, defendant did raise a meritorious defense. Defendant’s moving papers establish that it sent a timely request for verification and when plaintiff failed to respond, it sent a timely follow-up request. Inasmuch as plaintiff failed to respond to that second request, it appears the instant action is premature.

Additionally, the medical services at issue were allegedly provided prior to July 16, 2003, which may very well raise a valid statute of limitations issue. Here, plaintiff raises no issue of prejudice and, in light of all the facts herein, I find the delay to be de minimis.
Decision Date: February 14, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 1, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, without costs, defendant’s motion for summary judgment 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 moved for summary judgment dismissing the complaint on the ground that the supplies provided were not medically necessary. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. The Civil Court denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment. This appeal by defendant ensued.

In support of its motion for summary judgment, defendant submitted, among other things, an affirmed peer review report from its doctor and sworn peer review reports from its chiropractor, which set forth a factual basis and medical rationale for the conclusion that there was no medical necessity for the medical supplies at issue. As plaintiff conceded that the denials were timely, defendant’s prima facie entitlement to summary judgment was established (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]). In opposition to defendant’s motion, [*2]plaintiff failed to raise a triable issue of fact as it failed to proffer an affidavit from a health-care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review reports (see 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]). Accordingly, the Civil Court’s order is reversed, defendant’s motion for summary judgment is granted and plaintiff’s cross motion for summary judgment is denied (see Delta Diagnostic Radiology, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; 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]).

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 July 7, 2009. The order, insofar as appealed from, in effect, denied defendant’s cross 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court, in effect, denied both motions, holding, pursuant to CPLR 3212 (g), that the sole issue to be determined at trial was the medical necessity of the medical supplies at issue. Defendant appeals from so
much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

The papers submitted in support of defendant’s cross motion for summary judgment included two peer review reports in admissible form, both of which set forth a factual basis and medical rationale for the peer reviewers’ opinions that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant’s cross motion, plaintiff submitted an affirmation of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope [*2]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]). In view of the existence of a triable issue of fact as to the medical necessity of the medical supplies in question, defendant’s cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), dated June 23, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiffs’ cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon the
failure of plaintiffs’ assignor to attend independent medical examinations (IMEs) which were scheduled by Crossland Medical Services, P.C. (Crossland). Plaintiffs cross-moved for summary judgment. The Civil Court denied defendant’s motion and granted plaintiffs’ cross motion, finding that defendant had failed to establish the mailing of the IME scheduling letters. The instant appeal by defendant ensued.

The affidavits submitted by defendant in support of its motion failed to establish that the IME scheduling letters had been mailed in accordance with Crossland’s standard office practices and procedures or that the affiants had personally mailed the scheduling letters (see St. Vincent’s [*2]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]). Accordingly, the Civil Court properly denied defendant’s motion for summary judgment.

However, plaintiffs were not entitled to summary judgment upon their cross motion because the affidavit submitted by plaintiffs’ supervisor of medical billing pertained to the claims at issue in another action, rather than the claims at issue in this action (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiffs did not establish their prima facie case (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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