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 (Rudolph E. Greco, Jr., J.), entered October 22, 2008. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint based upon plaintiff’s failure to comply with a conditional order of preclusion.

ORDERED that the order, insofar as appealed from, 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, plaintiff failed to serve complete responses to defendant’s discovery demands within 45 days, as required by a so-ordered stipulation which, among other things, provided that if plaintiff failed to do so, plaintiff would be precluded from offering any evidence in any subsequent motion or at trial. As a result, the so-ordered stipulation was a conditional order of preclusion, which became absolute upon plaintiff’s failure to comply (see Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; Calder v Cofta, 49 AD3d 484 [2008]; Callaghan v Curtis, 48 AD3d 501 [2008]; Michaud v City of New York, 242 AD2d 369 [1997]; Saavedra v Aiken, 25 Misc 3d 133[A], 2009 NY Slip Op 52207[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In order to avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate an excusable default and a meritorious cause of action (see Panagiotou, 66 AD3d 979; Calder, 49 AD3d 484; Callaghan, 48 AD3d 501; Michaud at 370). Since plaintiff failed to do so, plaintiff is precluded from establishing a prima facie case. Accordingly, the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint (see Panagiotou, 66 AD3d 979; Calder, 49 AD3d 484; Callaghan, 48 AD3d 501; Michaud, 242 AD2d 369; Saavedra, 25 Misc 3d 133[A], 2009 NY Slip Op 52207[U]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: April 08, 2010

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 (Alice Fisher Rubin, J.), entered February 4, 2009. The order denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s 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, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment, finding that defendant had failed to demonstrate that the denial of claim form, which denied plaintiff’s claim on the ground of lack of medical necessity, had been timely mailed. The instant appeal by defendant ensued.

Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim form since the affidavit contained a detailed description, based on the affiant’s personal knowledge, of defendant’s standard office practices or procedures used to ensure that the denial was properly addressed and mailed (see 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 papers submitted in support of defendant’s motion included a sworn peer review report by defendant’s psychologist, which set forth a factual basis and medical rationale for his opinion that there was a lack of medical necessity for the psychological services at issue (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). [*2]In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint (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]), and the burden shifted to plaintiff to raise a triable issue of fact regarding medical necessity.

In opposition to defendant’s motion, plaintiff submitted, among other things, a letter of medical necessity sworn to by the psychologist who had examined plaintiff’s assignor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered (see A.B. Med. Servs., PLLC, 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U]). In view of the existence of a triable issue of fact, defendant’s motion for summary judgment was properly denied and plaintiff’s cross motion should have been denied. The order is modified accordingly.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: April 02, 2010

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 (Kathy J. King, J.), entered May 12, 2008. The order granted defendant’s motion to vacate a judgment and the underlying order granting plaintiff’s prior motion for summary judgment on default, and, upon such vacatur, in effect, granted defendant’s prior cross 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Defendant failed to appear on the return date of the motion, and plaintiff’s motion was granted on default. A judgment was subsequently entered pursuant to the order. Thereafter, defendant moved to vacate the default judgment and the underlying order. The Civil Court granted defendant’s motion and, upon vacating the judgment and order, in effect granted defendant’s prior cross motion for summary judgment dismissing the complaint.

In order to vacate the judgment and underlying order pursuant to CPLR 5015 (a) (1), defendant was required to establish both a reasonable excuse for its default and a meritorious defense to the action (see e.g. Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]). Defendant provided a reasonable excuse for its default in appearing by its attorney’s affirmation, which sufficiently justified the default and included a detailed explanation of the oversight (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; cf. A.B. Med. Servs., P.C. v GLI Corp. Risk Solutions, Inc., 25 Misc 3d 137[A], 2009 NY Slip Op 52322[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Defendant [*2]also established a meritorious defense to the action, as the affidavit of its claims specialist showed that defendant had timely and properly mailed the NF-10 denial of claim forms and verification request, by describing, in detail, based on the affiant’s personal knowledge, defendant’s standard office practices and procedures used to ensure that such documents were properly addressed and mailed (see 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]). In addition, affirmed peer review reports were annexed to defendant’s cross motion, which made a prima facie showing that the services provided were not medically necessary. Plaintiff failed to rebut this showing, and its remaining contentions lack merit.

Consequently, the Civil Court did not improvidently exercise its discretion in vacating the default judgment and order, and, upon vacatur, properly, in effect, granted defendant’s prior cross motion for summary judgment dismissing the complaint (see e.g. Vista Surgical Supplies, Inc. v GEICO Ins. Co., 23 Misc 3d 133[A], 2009 NY Slip Op 50739[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]). Accordingly, the order is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: April 02, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 23, 2008. The judgment, entered upon an order of the same court entered June 19, 2008 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the sum of $8,153.54.

ORDERED that the judgment is reversed without costs, the portions of the order entered June 19, 2008 which granted plaintiff’s motion for summary judgment and which denied the branches of defendant’s cross motion seeking summary judgment dismissing the second, fourth, fifth, sixth, ninth and tenth causes of action, as well as so much of the third cause of action as sought to recover upon the $30.80 claim, are vacated, plaintiff’s motion for summary judgment is denied and the branches of defendant’s cross motion seeking summary judgment dismissing the second, fourth, fifth, sixth, ninth and tenth causes of action, as well as so much of the third cause of action as sought to recover upon the $30.80 claim, are granted, and the matter is remitted to the Civil Court for all further proceedings on the first, seventh and eighth causes of action as well as so much of the third cause of action as sought to recover upon the $523.20 claim.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and implicitly denied
defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, and this appeal by defendant ensued.

Since the affidavit of defendant’s claims representative conceded receipt of the claims in question (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. [*2]Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]) and the affidavit of plaintiff’s billing manager established that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (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]), plaintiff’s prima facie entitlement to summary judgment was established.

The affidavit of defendant’s no-fault litigation supervisor sufficiently established the timely mailing of the NF-10 denial of claim forms and verification requests since it described, in detail, based on the affiant’s personal knowledge, defendant’s standard office practices or procedures used to ensure that said documents were properly mailed (see 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]).

In regard to plaintiff’s second, fourth, fifth, sixth and ninth causes of action, as well as so much of the third cause of action as sought to recover upon a $30.80 claim, defendant timely mailed its initial requests for verification (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]), and plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification requests, which were mailed on either the 29th or 30th day after the initial verification requests, but prior to the expiration of the full 30-day period within which plaintiff was required to respond to defendant’s initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2d Dept 2009]), “the 30-day period within which the defendant was required to pay or deny the claim[s] did not commence to run [and] plaintiff’s action is premature” (id. at 865 [citations omitted]). As a result, defendant was entitled to summary judgment dismissing these causes of action.

Defendant also established that it had timely denied the two $182.84 and three $523.20 claims on the ground that the services for which payment was sought were part of another service and, thus, were not separately reimbursable (see St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., 26 Misc 3d 58 [App Term, 2d, 11th & 13th Jud Dists 2009]), and defendant’s opposition papers were sufficient to raise a triable issue of fact with respect thereto. Consequently, neither party was entitled to summary judgment on the first, seventh and eighth causes of action, as well as so much of the third cause of action as sought to recover upon the $523.20 claim.

Moreover, we note that defendant correctly argues that plaintiff submitted duplicate claims for $209.32. Therefore, defendant is entitled to summary judgment dismissing the tenth cause of action.

Accordingly, the judgment is reversed, the portions of the order entered June 19, 2008 which granted plaintiff’s motion for summary judgment and which denied the branches of defendant’s cross motion seeking summary judgment dismissing the second, fourth, fifth, sixth, ninth and tenth causes of action, as well as so much of the third cause of action as sought to recover upon the $30.80 claim, are vacated, plaintiff’s motion for summary judgment is denied and the branches of defendant’s cross motion seeking summary judgment dismissing the second, fourth, fifth, sixth, ninth and tenth causes of action, as well as so much of the third cause of action as sought to recover upon the $30.80 claim, are granted, and the matter is remitted to the [*3]Civil Court for all further proceedings on the first, seventh and eighth causes of action as well as so much of the third cause of action as sought to recover upon the $523.20 claim.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: April 02, 2010

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 (Timothy J. Dufficy, J.), entered December 11, 2008. The order granted defendant’s motion to vacate a default judgment.

ORDERED that the order is affirmed without costs.

In this subrogation action to recover the amount plaintiff paid in no-fault benefits as a result of the injuries its insureds sustained in a motor vehicle accident, defendant failed to timely appear or answer and, in July 2002, a default judgment was entered against him. Thereafter, defendant moved to vacate the default judgment. Pursuant to a stipulation entered into in June 2007, the default judgment was vacated and defendant’s affidavit submitted in support of his motion was deemed his answer. The case was subsequently set down for trial, at which defendant failed to appear. The default judgment was thereafter reinstated. Defendant then moved to vacate the default judgment, which motion was granted by order entered December 11, 2008. The instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant established both a reasonable excuse for his default and a meritorious defense to the action. We note that public policy favors the resolution of cases on the merits (see Bunch v Dollar Budget, Inc., 12 AD3d 391 [2004]). Accordingly, the order is affirmed.

Weston, J.P., Golia and Rios, JJ., concur. [*2]
Decision Date: March 31, 2010

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 (Alice Fisher Rubin, J.), entered August 6, 2008. The order, insofar as appealed from, implicitly denied the branch of defendant’s cross motion seeking summary judgment dismissing the complaint and deemed established as a fact for all purposes in the action that plaintiff had made out a prima facie case.

ORDERED that the order, insofar as appealed from, is reversed without 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, plaintiff moved for summary judgment in the principal sum of $910 and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, for limitation of issues of fact for trial (see CPLR 3212 [g]). Defendant appeals from so much of the Civil Court’s order as denied its cross motion for summary judgment dismissing the complaint and as deemed established plaintiff’s prima facie case.

In support of its cross motion for summary judgment dismissing the complaint, and in opposition to plaintiff’s motion for summary judgment, defendant sufficiently established the timely mailing of the denial of claim form, which denied plaintiff’s claim on the ground that the supplies provided were medically unnecessary (see 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]). In addition, annexed to the cross motion papers was an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s opinion that the supplies provided to plaintiff’s assignor were not medically [*2]necessary (see Med Tech Prods., Inc. v Geico Ins. Co., 25 Misc 3d 129[A], 2009 NY Slip Op 52111[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Complete Orthopedic Supplies, Inc. v State Farm Mut. Ins. Co., 23 Misc 3d 5 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff failed to rebut said showing, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Complete Orthopedic Supplies, Inc. v State Farm Mut. Ins. Co., 23 Misc 3d at 7; 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]). We pass on no other issue.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 31, 2010

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 November 28, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that 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 on the ground that the professional health services provided lacked medical necessity. Plaintiff opposed the motion. The Civil Court granted defendant’s motion and the instant appeal ensued.

Defendant made a prima facie showing of its entitlement to summary judgment by establishing the timely mailing of the claim denial form (see 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]) and by submitting a sworn peer review report of its psychologist, which set forth a factual basis and medical rationale for his opinion that the professional health services at issue were not medically necessary (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]). In opposition to the motion, plaintiff failed to raise a triable issue of fact, as the psychologist’s affirmation submitted by plaintiff did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also 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]).

Accordingly, defendant’s motion for summary judgment dismissing the complaint was properly granted. [*2]

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 31, 2010

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 (Lila P. Gold, J.), entered June 19, 2008. The order, insofar as appealed from as limited by the brief, (1) denied the branch of defendant’s motion seeking to vacate four orders dated November 30, 2007 granting, upon defendant’s default, plaintiff’s four motions for summary judgment, and, upon such vacatur, to deny plaintiff’s four motions for summary judgment, and (2) denied the branch of defendant’s motion seeking leave to renew the prior motions.

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

Plaintiff commenced four actions against defendant to recover assigned first-party no-fault benefits and, thereafter, moved for summary judgment in each action. In June 2007, the parties stipulated to adjourn the motions until November 30, 2007, and defendant agreed to serve its opposition papers by September 30, 2007. In July 2007, the parties stipulated to consolidate the four actions into one. Defendant served its opposition papers in November 2007, but the Civil Court would not consider them on the ground that they were untimely. By four separate orders dated November 30, 2007, the court granted plaintiff’s motions for summary judgment on default, finding that plaintiff had established its prima facie entitlement to summary judgment with respect to each motion. In December 2007, defendant moved to, among other things, vacate its default and/or for leave to renew/reargue the prior motions. Defendant’s motion was denied by order entered June 19, 2008, and the instant appeal by defendant ensued.

A defendant seeking to vacate a default pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]). In the exercise of its discretion, a court can accept a claim of law office failure as an [*2]excuse (see CPLR 2005) if the facts submitted in support thereof are in evidentiary form and sufficient to justify the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]). By its June 19, 2008 order, the Civil Court correctly found defendant’s law office failure excuse to be disingenuous and insufficient to justify the default. Consequently, so much of the order as denied the branch of defendant’s motion seeking to vacate its default is affirmed.

Furthermore, so much of the June 19, 2008 order as denied the branch of defendant’s motion seeking leave to renew is affirmed. Defendant cannot renew a motion upon which it defaulted.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 31, 2010

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 (Kenneth P. Sherman, J.), entered February 15, 2008. The order (1) denied plaintiff’s motion for summary judgment and (2) granted defendant’s cross motion seeking summary judgment dismissing the complaint or, in the alternative, to compel examinations before trial, to the extent of permitting defendant to serve discovery requests upon plaintiff, while preserving plaintiff’s right to object to such requests.

ORDERED that the appeal from so much of the order as granted defendant’s cross motion to the extent of permitting defendant to serve discovery requests upon plaintiff, while preserving plaintiff’s right to object to such requests, is dismissed as plaintiff is not aggrieved thereby; and it is further,

ORDERED that the order, insofar as reviewed, 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 or, in the alternative, to compel examinations before trial (EBTs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion “to the extent of permitting defendant to serve discovery requests upon plaintiff. Plaintiff’s right to object to said requests is preserved.” The instant appeal by plaintiff ensued.

A review of the record indicates that plaintiff failed to establish its prima facie entitlement to summary judgment. The affidavit in support of plaintiff’s motion, submitted by the “employee of the company providing billing services for the plaintiff,” was insufficient to establish said employee’s personal knowledge of plaintiff’s practices and procedures so as to lay a [*2]foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers (see Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

While plaintiff contends that defendant did not establish its entitlement to compel the EBTs of specified persons, we do not pass upon said issue as the Civil Court did not grant such relief. Rather, the court merely “permitt[ed] defendant to serve discovery requests upon plaintiff” and noted that plaintiff’s “right to object to said requests is preserved.” Therefore, plaintiff is not aggrieved by the part of the order which gave defendant permission to serve discovery requests and preserved plaintiff’s right to object to the requests (see CPLR 5511; see also CPLR 3122 [a]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 31, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered December 1, 2006. The order granted a petition to vacate a master arbitrator’s award and directed the entry of judgment in favor of petitioner in the principal sum of $6,498.52.

ORDERED that the order is reversed without costs and the petition to vacate the master arbitrator’s award is denied without prejudice to renewal upon proper papers.

RJ Professional Acupuncturist, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld an arbitrator’s award denying petitioner’s claim for assigned first-party no-fault benefits. The Civil Court
granted the petition, vacated the master arbitrator’s award and directed the entry of judgment in favor of petitioner in the principal sum of $6,498.52.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see SP Med., P.C. v Country-Wide Ins. Co., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]). The only document submitted by petitioner in support of the petition was one denominated an “Affirmation in Support.” The attorney who purportedly signed the document did not affirm the statements contained therein “to be true under the penalties of perjury” (CPLR 2106) but merely indicated that he “states as follows” (cf. Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, the document is insufficient as an affirmation (SP Med., P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]). In view of the foregoing, the order [*2]is reversed and the petition to vacate the master arbitrator’s award is denied without
prejudice to renewal upon proper papers (see Matter of Sadler Textiles [Winston Uniform Corp.], 39 AD2d 845 [1972]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 31, 2010