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 (Dolores L. Waltrous, J.), entered January 6, 2006. 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, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate 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. In opposition, defendant argued, inter alia, that plaintiff’s moving papers failed to establish plaintiff’s prima facie entitlement to judgment as a matter of law. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see 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. [*2]

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

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 (George J. Silver, J.), entered December 15, 2005. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment denied.

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 a corporate 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. The court below granted the motion and the instant appeal by defendant ensued.

On appeal, defendant contends that the affidavit by plaintiff’s corporate officer, submitted in support of the 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. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer [*2]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]; Dan Med., P.C. v New York Cent. Mut. Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the branch of the order which granted plaintiff’s motion for summary judgment is reversed and plaintiff’s motion for summary judgment denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

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 (Arlene Bluth, J.), entered November 28, 2005. 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, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate 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. The court below denied the motion on the ground that plaintiff failed to make a prima facie case because the corporate officer’s affidavit did not lay a sufficient foundation to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as 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 [*2]plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see 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.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

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 March 22, 2005. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed plaintiff’s motion, asserting, inter alia, that it timely denied plaintiff’s claims based on the assignor’s failure to appear for three scheduled independent medical examinations (IMEs). Defendant also cross-moved to dismiss the complaint pursuant to CPLR 3126 for plaintiff’s failure to appear at an examination before trial. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of, inter alia, compelling plaintiff, through its corporate officer, Roman Zhuchkan, D.C., to appear for an examination before trial within 60 days after service of a copy of its order with notice of entry. Plaintiff appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment and contends that it [*2]was entitled to summary judgment because defendant did not, among other things, proffer evidence from one with personal knowledge to establish the mailing of the verification requests which scheduled independent medical examinations (IMEs) and the failure of plaintiff’s assignor to appear for IMEs.

While defendant asserts that it timely denied plaintiff’s claims based on the assignor’s failure to appear for three scheduled IMEs, defendant did not submit evidence from anyone with personal knowledge of the mailings of the IME scheduling notices or of the nonappearances of the assignor. As a result, defendant failed to establish the existence of a triable issue of fact (see CPLR 3212; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Therefore, the court below improperly denied plaintiff’s motion for summary judgment. Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and BELEN, JJ.
IMPULSE CHIROPRACTIC, P.C.
as assignee of CECILIA RODRIGUEZ,

Appellant,

-against-
KEMPER INSURANCE CO.,

Respondent.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: March 28, 2007

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 August 4, 2005. The order denied plaintiffs’ motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition, defendant submitted an affidavit from an employee of the third-party retained by it to schedule and perform independent medical examination (IMEs) on defendant’s behalf. The court denied plaintiffs’ motion for
summary judgment, holding that there was an issue of fact due to the failure of plaintiffs’ assignor to comply with properly noticed IME requests. On appeal, plaintiffs contend, inter alia, that they were entitled to summary judgment because defendant failed to proffer non-hearsay evidence establishing that the IME notices were actually mailed.

Contrary to plaintiffs’ contention, the affidavit submitted by defendant was sufficient to establish that the IME notices were mailed (see Amaze Med. Supply Inc. v General Assur. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50307[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the order is affirmed. [*2]

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: March 28, 2007

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 (Alice Fisher Rubin, J.), entered March 24, 2005. 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, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s
counsel, an affidavit from plaintiff s president and various documents annexed thereto. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s president failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. The court below denied the motion on the ground that defendant raised an issue of fact as to whether the injuries arose from a covered incident. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s president was insufficient to establish that she possessed 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see 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.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

[*1]

Supreme Court, Appellate Term, Second Department, March 28, 2007

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City (Martha S. Henley of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn, for respondent.

{**15 Misc 3d at 111} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiff’s motion for summary judgment denied without prejudice to renewal upon completion of discovery, and defendant’s motion to dismiss for failure to provide discovery or, in the alternative, to compel plaintiff to provide discovery granted to the extent of compelling plaintiff to serve, within 30 days after the date of the order entered hereon, responses to defendant’s demand for written interrogatories and, within 30 days after service of such responses, to produce for examinations before trial the witnesses identified in defendant’s amended notice of examination before trial.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant served opposing papers and subsequently moved to dismiss the complaint based on plaintiff’s failure to respond to discovery demands or, in the alternative, for an order compelling plaintiff to comply with its discovery demands. The court granted plaintiff’s motion and denied defendant’s motion. The instant appeal by defendant ensued. [*2]

In State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), the Court of Appeals held that fraudulently incorporated medical corporations were not entitled to reimbursement of no-fault benefits. The Court noted that 11 NYCRR 65-3.16 (a) (12), which states that “[a] provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement,” specifically “excluded from the meaning of ‘basic economic loss’ payments made to unlicensed or fraudulently licensed providers, thus rendering them ineligible for reimbursement” (Mallela, 4 NY3d at 320). The defense that a provider is fraudulently licensed is a nonwaivable defense (see First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists 2006]; see also Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; see generally Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d Dept 2006]). Defendant’s opposition papers suffice to raise issues as to who really operated and controlled plaintiff (see Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists 2007]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d Dept 2006]). Since{**15 Misc 3d at 112} the opposition papers set forth that facts essential to justify opposition may exist but cannot be stated (see CPLR 3212 [f]), plaintiff’s motion for summary judgment should have been denied without prejudice to renewal upon the completion of discovery.

With respect to defendant’s motion to dismiss for failure to provide discovery or, in the alternative, to compel plaintiff to provide discovery, plaintiff failed to oppose said motion. Accordingly, defendant’s motion should have been granted to the extent of compelling plaintiff to serve responses to defendant’s demand for written interrogatories and to produce for examinations before trial the witnesses identified in defendant’s amended notice of examination before trial.

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

[*1]

Supreme Court, Appellate Term, Second Department, March 28, 2007

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant.

{**15 Misc 3d at 98} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment predicated on the lack of coverage, i.e., that the assignor’s injuries, if any, did not arise from the underlying traffic incident, and, if they did, the incident was staged to defraud defendant. After the court (Norman Janowitz, J.) denied defendant’s motion, plaintiff then moved for summary judgment, which defendant opposed essentially on the same proof of fraud submitted in support of its own motion. The court (Erica L. Prager, J.) declined to review defendant’s proof of fraud on the ground that the prior determination, that the proof did not support defendant’s motion, was the law of the case. The court granted plaintiff’s motion and this appeal ensued.

Contrary to the determination of the court below, the prior order which denied defendant’s motion for summary judgment did not bar reconsideration of defendant’s proof of fraud in opposition to plaintiff’s motion, since the quantum of proof needed to obtain summary judgment is higher than that necessary to establish a triable issue of material fact in opposition to such a motion (e.g. Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Stone v Goodson, 8 NY2d 8, 12 [1960]; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453 [2000]). [*2]

To interpose a defense of staged-accident fraud sufficient to raise a triable issue of fact, defendant must establish “the fact or founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists 2005]). Mere “unsubstantiated assertions or speculations” are insufficient (Alvarez v Prospect Hosp., 68 NY2d 320, 327 [1986]). The affidavit of defendant’s special investigator and the attached exhibits failed to substantiate the investigator’s conclusory allegations of the insured’s participation in a “ring” that stages traffic incidents to defraud insurers (see Comprehensive Mental v Allstate Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50017[U] [App Term, 9th & 10th Jud Dists 2007]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [2005], supra). In addition, the discrepancies in the testimony{**15 Misc 3d at 99} given by two passengers during their examinations under oath were insufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2006]).

We note that the insured had no obligation to appear for an examination under oath because “at the applicable time, the insurance regulations contained no authorization for examinations under oath” (Amstel Chiropractic v Omni Indem. Co., 2 Misc 3d 129[A], 2004 NY Slip Op 50088[U], *1 [App Term, 2d & 11th Jud Dists 2004]). In such circumstances, the mere failure to appear for such an examination does not support an inference of “the fact or founded belief” that the underlying incident was staged to defraud.

McCabe, J.P., Tanenbaum and Lippman, 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, Kings County (Karen B. Rothenberg, J.), entered March 2, 2006. The order granted defendant’s motion to dismiss plaintiff’s action for failure to comply with a court-ordered examination before trial and denied plaintiff’s cross motion to vacate, renew and reargue the order of the same court (Sarah L. Krauss, J.), entered December 7, 2004, which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of compelling one of plaintiff’s employees to appear for an examination before trial.

Appeal from so much of the order as denied that branch of plaintiff’s cross motion which sought reargument dismissed.

Order, insofar as reviewed, 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 an order compelling plaintiff, plaintiff’s assignor and the assignor’s treating physician to appear for examinations before trial. In its reply papers, plaintiff did not oppose that branch of defendant’s cross motion which sought an order compelling depositions. By order entered December 7, 2004, the court denominated defendant’s cross motion as one seeking summary judgment as well as to compel examinations before trial, denied plaintiff’s motion for summary judgment, denied defendant summary [*2]judgment and granted, on default, defendant’s cross motion to the extent of compelling one of plaintiff’s employees with relevant knowledge to appear for an examination before trial within 60 days, provided that the defendant re-serve a deposition notice within 20 days of said order. Thereafter, defendant moved to dismiss the complaint on the ground that, on December 8, 2004, it had served plaintiff with a copy of the prior order with notice of entry and that on December 10, 2004, defendant served plaintiff with a notice to take deposition. However, plaintiff failed to produce an employee for the court-
ordered deposition. Plaintiff cross-moved to vacate the December 7, 2004 order and for reargument and renewal of said order. By order entered March 2, 2006, from which plaintiff now appeals, the court granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross motion.While plaintiff is appealing from the branch of the order which denied its motion for reargument, no appeal lies from an order denying reargument (see Coque v Wildflower Estates Developers, Inc., 31 AD3d 484 [2006]). To the extent plaintiff is also appealing from the branch of the order which denied its motion seeking renewal, CPLR 2221 (e) (2) provides that a motion for leave to renew a prior motion must be based upon “new facts not offered on the prior motion that would change the prior determination” or must show “that there has been a change in the law that would change the prior determination.” Furthermore, the motion papers must contain a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). In the instant case, plaintiff did not proffer a reasonable justification for its failure to present the facts upon which its renewal motion was based to the motion court on its prior motion for summary judgment (see T & B Port Washington, Inc. v McDonough, 34 AD3d 785 [2006]; Renna v Gullo, 19 AD3d 472 [2005]). Accordingly, the branch of plaintiff’s motion seeking renewal was properly denied.

Furthermore, in order to vacate the December 7, 2004 order insofar as it granted defendant’s cross motion upon plaintiff’s default, plaintiff was required to demonstrate, inter alia, a reasonable excuse for its default (see Gironda v Katzen, 19 AD3d 644 [2005]; Liotti v Peace, 15 AD3d 452 [2005]; Abrams v City of New York, 13 AD3d 566 [2004]). Inasmuch as plaintiff failed to proffer a reasonable excuse as to why it did not oppose defendant’s cross motion seeking an order compelling examinations before trial, the lower court properly denied that branch of plaintiff’s cross motion seeking vacatur of the December 7, 2004 order.

Moreover, as noted by the Court of Appeals, “[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity” (Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). In the case at bar, the branch of defendant’s motion which sought to compel depositions was granted on default and since plaintiff failed to obtain a stay of said order, plaintiff was obligated to produce one of its employees for an examination before trial (id.). Plaintiff’s willful failure to produce an employee for the court-ordered deposition resulted in an additional motion by defendant to dismiss the complaint, thereby wasting scarce judicial resources, and such behavior cannot be tolerated (see Fair Price Med. Supply Corp. v
ELRAC Inc., 12 Misc 3d 126[A], 2006 NY Slip Op 50864[U] [App Term, 2d & 11th Jud Dists]). [*3]Accordingly, the order, insofar as reviewed, is affirmed.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 26, 2007

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 September 30, 2005, and from an order of the same court, entered February 22, 2006. The order dated September 30, 2005, insofar as appealed from, denied plaintiff’s motion for summary judgment. The order entered February 22, 2006 denied plaintiff’s motion to vacate the order dated September 30, 2006 and to renew plaintiff’s motion for summary judgment.

Appeal from order entered February 22, 2006 dismissed.

Order dated September 30, 2005, insofar as appealed from, 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 officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. By order dated September 30, 2005, the court below denied the motion on the ground, inter alia, that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s corporate officer failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein. Plaintiff appeals from the denial of its motion for summary judgment. Plaintiff also appeals from the order entered February 22, 2006 which denied its motion to vacate the September 30, 2005 order and to renew [*2]its motion for summary judgment.

Since 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 proper foundation for the admissibility, 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 (see Fortune Med., P.C. v Allstate Ins. Co., ____ Misc 3d ____[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists]; 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 dated September 30, 2005 properly denied plaintiff’s motion for summary judgment.

To the extent plaintiff also appeals from the order entered February 22, 2006, plaintiff has raised no issue with respect thereto and, thus, said appeal is dismissed as abandoned.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 26, 2007