SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered October 17, 2006. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment.

Appeal dismissed.

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 action was premature as defendant’s time to pay or deny the claim was tolled due to plaintiff’s failure to adequately respond to timely verification and follow-up verification requests. Plaintiff cross-moved for summary judgment. The court denied defendant’s motion and plaintiff’s cross motion. The instant appeal by defendant ensued.

Upon oral argument of this appeal on February 13, 2007, this court was informed that, by order dated July 31, 2007, the court below had granted a motion by defendant to reargue, and, upon reargument, had granted defendant’s motion for summary judgment dismissing the complaint. In light of the order dated July 31, 2007, the instant appeal has been rendered moot. Accordingly, the appeal is dismissed.

This court reminds the parties’ counsel and the bar in general of the affirmative obligation to immediately notify an appellate court when an underlying action has been settled or the appeal otherwise rendered moot (cf. Rules of App Div, 2d Dept [22 NYCRR] § 670.2 [g]).

Weston Patterson, J.P., Golia and Rios, JJ. [*2]
Decision Date: March 12, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered November 3, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that
the documents attached to plaintiff’s motion papers were plaintiff’s business records. Defendant cross-moved for summary judgment on the ground of lack of medical necessity. The court below denied plaintiff’s motion and granted defendant’s cross motion, finding that defendant established its defense of lack of medical necessity. This appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (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.

There is no merit to plaintiff’s argument that defendant’s cross motion should have been denied because its NF-10 denial forms, which were based upon peer review reports, did not assert sufficient facts and a medical rationale based thereon to set forth the reason for the denials (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). Further, the sworn [*2]papers submitted in support of defendant’s cross motion, including detailed peer review reports, established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted. As a result, the court properly granted defendant’s cross motion for summary judgment (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 Patterson and Rios, JJ., concur.
Decision Date: March 12, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered August 24, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order 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 court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, holding that defendant established a lack of medical necessity and that defendant’s denial of claim form interposing said defense was timely. The instant appeal by plaintiff ensued.

Since defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

Turning to the merits of defendant’s cross motion for summary judgment, defendant established that it timely denied plaintiff’s claim on the ground that the supplies provided were not medically necessary based on an affirmed peer review report. Since the peer review report submitted by defendant in support of its cross motion established prima facie that the supplies provided by plaintiff were not medically necessary and plaintiff did not present any evidence refuting defendant’s prima facie showing, the court below properly granted defendant’s cross motion for summary
judgment dismissing the complaint (see 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 [*2]NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 12, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, Third District (C. Steven Hackeling, J.), dated September 15, 2006. The order denied defendant’s motion for partial summary judgment dismissing the first, second, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth causes of action asserted in the complaint.

Order reversed without costs and defendant’s motion for partial summary judgment dismissing the first, second, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth causes of action asserted in the complaint granted.

In this action by providers to recover assigned first-party no-fault benefits, defendant moved for partial summary judgment dismissing the first, second, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth causes of action asserted in the complaint on the ground that the claims giving rise to said causes of action were submitted to defendant beyond the 45-day deadline set forth in the automobile insurance policy’s Mandatory Personal Injury Protection Endorsement (Endorsement). The sole basis upon which plaintiff opposed defendant’s motion was that defendant did not establish that the 45-day deadline was contained in the Endorsement [*2]which was part of the applicable automobile insurance policy. The court denied defendant’s motion, holding that defendant failed to prove that plaintiff’s claims were subject to the 45-day deadline. This appeal by defendant ensued.

The Endorsement, which was required to be included in automobile insurance policies issued or renewed after April 5, 2002, reduced the time within which claims were to be submitted to insurers after the date services were rendered from 180 days to 45 days (Insurance Department Regulations [11 NYCRR] § 65.12 [e], now Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]; see S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2004]). Pursuant to Insurance Law § 3425 (a) (8), the policy period for newly issued and renewed automobile insurance policies is one year (see also Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475 [2001]). In the instant case, the plaintiffs’ assignor was allegedly injured in an automobile accident on November 12, 2004 and defendant received plaintiff’s claims for the services at issue more than 45 days after the services were rendered. Since an automobile insurance policy which contained the prior version of the Endorsement would have expired no later than in April 2003 (see Insurance Law § 3425 [8]), the automobile insurance policy applicable to the claims at issue in the instant case was required to contain the current Endorsement which sets forth the 45-day time limit for the submission of claims (Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]; see S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2004], supra) and defendant need not prove that the instant automobile insurance policy contained such Endorsement.

In view of the foregoing, defendant’s motion for partial summary judgment dismissing the first, second, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth causes of action asserted in the complaint should have been granted since it was undisputed that defendant’s timely denial of claim forms denied the subject claims based upon plaintiff’s failure to submit said claims within 45 days after the date the services were rendered and the record reveals that plaintiffs failed to proffer admissible evidence demonstrating that there was a “reasonable justification” for the untimely submission of the claims (St. Vincent’s Hosp. & Med. Ctr. v Country Wide Ins. Co., 24 AD3d 748 [2005]; Nir v MVAIC, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U] [App Term, 2d & 11th Jud Dists 2007]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term, 1st Dept 2007]).

McCabe, J.P., Tanenbaum and Molia, JJ., concur.
Decision Date: March 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered January 16, 2007. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the court denied plaintiff’s motion for summary judgment finding that defendant raised an issue of fact by demonstrating that its time to pay or deny plaintiff’s claim was tolled due to timely verification requests. The instant appeal by plaintiff ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate officer, submitted in support of plaintiff’s motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

Weston Patterson, J.P., Golia and Rios, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered May 8, 2006. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted the motion, and this appeal by defendant ensued.

On appeal, defendant asserts that the affidavit of plaintiff’s corporate officer, submitted in support of the motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the order is reversed and plaintiff’s motion for summary judgment denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 21, 2006, deemed from a judgment entered December 27, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 21, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,854.30.

Judgment reversed without costs, so much of the order entered September 21, 2006 as granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issues raised by defendant are whether it proffered sufficient evidence in support of its cross motion for summary judgment to entitle it to dismissal of plaintiff’s complaint due to the fact that the injuries sustained by plaintiff’s assignor did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) or, in the alternative, whether it proffered sufficient evidence in opposition to plaintiff’s motion for summary judgment to defeat same. Upon a review of the record, we find that while defendant demonstrated that it possessed a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199) so as to defeat plaintiff’s motion, it failed to submit sufficient evidence in admissible form to establish, as a matter of law, “that the alleged injur[ies] do[] not arise out of an insured incident” (id.) so as to warrant dismissal of the complaint. Consequently, neither plaintiff nor defendant is entitled to summary judgment upon their respective motion and cross motion seeking such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 7, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered November 16, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion, asserting that the injuries allegedly sustained by plaintiff’s assignor were not causally related to the accident. The court denied plaintiff’s motion for summary judgment holding that
while plaintiff proved its prima facie entitlement to summary judgment, defendant raised a triable issue of fact. This appeal by plaintiff ensued.

Plaintiff established its prima facie entitlement to summary judgment by proof that it submitted the claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The burden, therefore, shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion, defendant asserted the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The Accident Reconstruction Analysis report, accompanied by the sworn affidavit of the consultant who prepared said report, was sufficient to demonstrate that the defense was based on a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. [*2]Hosp., 90 NY2d at 199; Mount Sinai Hosp., 263 AD2d at 18-19; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists 2005]; cf. Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 97 [App Term, 1st Dept 2007]).

Plaintiff’s argument, that the consultant’s sworn affidavit was inadmissible, because it did not comply with CPLR 2309 (c), is raised for the first time on appeal, and therefore waived (see Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), the lower court properly denied plaintiff’s motion for summary judgment.

In light of the foregoing, we do not reach the parties’ remaining contentions.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 5, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Cynthia Kern, J.), dated July 14, 2006, deemed from a judgment entered August 16, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 14, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,133.14.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was granted and the instant appeal by defendant ensued.

Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto. In opposition to plaintiff’s motion for summary judgment, defendant submitted, inter alia, an accident analysis report and an affidavit of the technical consultant who prepared the report in an attempt to demonstrate that there was an issue of fact as to whether the injuries allegedly sustained by plaintiff’s assignor arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). The affidavit proffered by defendant was executed in Maryland, and did not comply with CPLR 2309 (c), in that it was not accompanied by a certificate of conformity. Since this defect was duly objected to by plaintiff in the court below, defendant failed to introduce competent evidence in admissible form establishing that it possessed a founded belief that the alleged injuries did not arise out of an insured incident (see Dan Med., P.C. v New York Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51981[U] [App Term, 2d & 11th Jud Dists 2007]; see also Jenkins v Diamond, 308 AD2d 510 [2003], citing Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]; cf. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & [*2]11th Jud Dists 2006]). Accordingly, plaintiff’s motion
for summary judgment was properly granted, as defendant failed to raise a triable issue of fact.

Defendant’s constitutional challenge to CPLR 2309 (c) is unpreserved for appellate review since this argument was not made in the court below (see Matter of Larry B., 39 AD3d 399 [2007]; Matter of Coleman v Thomas, 295 AD2d 508 [2002]; Catholic Family Ctr. v Doe, 147 AD2d 977 [1989]; Emmer v Emmer, 69 AD2d 850 [1979]). Moreover, said challenge is not reviewable as defendant failed to give the requisite statutory notice to the Attorney General (see Executive Law § 71; CPLR 1012; Estate of Marone v Chaves, 306 AD2d 372 [2003]; Matter of Lee P.S. v Lisa L., 301
AD2d 606 [2003]; Robert Fiance Hair Design Inst. v Concourse Props. Co., 130 AD2d 564 [1987]).

In light of the foregoing, the judgment is affirmed.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 29, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Randy Sue Marber, J.), dated August 30, 2005. The order, insofar as appealed from, denied plaintiffs’ motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiffs’ motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by two providers to recover assigned first-party no-fault benefits, the sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiffs’ assignor allegedly sustained, arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that defendant failed to proffer sufficient evidence in admissible form to demonstrate that it possessed a “founded belief that the alleged injur[ies] do not arise out of an insured incident” (id. at 199; Comprehensive Mental v Allstate Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50017[U] [App Term, 9th & 10th Jud Dists 2007]; A.B. Med. Servs. PLLC v State Farm Auto Ins. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2006]; Ocean Diagnostic Imaging P.C. v Travelers Indem. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50644[U] [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, plaintiffs’ motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rudolph, P.J., McCabe and Scheinkman, JJ., concur. [*2]
Decision Date: February 27, 2008