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, First District (Sharon Commissiong, J.), entered April 19, 2005. The order, insofar as appealed from, 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 for an MRI provided its assignor, the court denied plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment on the ground that defendant’s peer review report created a triable issue of the MRI’s medical necessity. After receiving plaintiff’s claim, defendant informed plaintiff by letter that the claim’s “processing” would be delayed pending receipt of “confirmation of medical necessity
from the referring physician.” Defendant received the verification 13 days later and issued its denial 30 days thereafter on the basis of the peer review report which was compiled, in part, on information received from the physician.

Plaintiff objects only to defendant’s failure to seek the verification directly from plaintiff as, plaintiff insists, the regulations require. The court below rejected the argument and we affirm for the reasons set forth in Doshi Diagnostic Imaging Servs. v State Farm Insurance (___ Misc 3d ___, 2007 NY Slip Op _______, decided herewith). [*2]

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 16, 2007

[*1]

Supreme Court, Appellate Term, Second Department, March 16, 2007

APPEARANCES OF COUNSEL

Friedman, Harfenist, Langer & Kraut, Lake Success (Neil Torczyner of counsel), for appellant.

{**16 Misc 3d at 43} OPINION OF THE COURT

Memorandum.

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 action as premature due to outstanding requests for verification. The court granted defendant’s cross motion and this appeal by plaintiff ensued.

After receiving the claim, defendant issued a letter to the prescribing physician requesting verification of the medical necessity of the MRI performed at plaintiff’s facility and detailing the information sought. On the same day, defendant advised plaintiff by letter that the claim’s determination would be delayed pending receipt of medical necessity verification from the prescribing physician. The initial verification request remained unsatisfied after 30 days, whereupon defendant followed up its request to the prescribing physician and sent plaintiff a copy of the request and a second letter, nearly identical to the first, to the effect that a decision on [*2]the claim was being delayed pending medical necessity verification. Plaintiff objects only to defendant’s failure to seek the verification directly from plaintiff as, plaintiff insists, the regulations require. Contrary to plaintiff’s contention, the record establishes that the letters sent by defendant sufficed to toll the statutory claim determination period (Insurance Law § 5106 [a]; 11 NYCRR 65-3.2 [c]; 65-3.5 [a], [c]; 65-3.6 [b]).

The insurance regulations require that there be “good reasons” to demand verification (11 NYCRR 65-3.2 [c]), that the demand be directed “as expeditiously as possible” (id.) to the “parties required to complete them” (11 NYCRR 65-3.5 [a]), and that the insurer is entitled to receive the verification “directly from the parties from whom such verification was requested” (11 NYCRR 65-3.5 [c]). We do not construe the reference to “parties” to be limited to an applicant for no-fault benefits. By its terms, 11 NYCRR 65-3.6 (b) requires the insurer to inform the “applicant” of the nature of previously requested and unproduced verification, the identity of “the party from whom it was requested,” and that the request is renewed. The provisions clearly contemplate that an applicant may not be the only appropriate “party” from whom, for example, medical necessity verification may most readily be obtained (e.g. a medical{**16 Misc 3d at 44} equipment provider who fills a prescription or, as here, an MRI facility acting upon an outside physician’s referral). Where verification is sought from a party other than the applicant, the applicant is entitled to be timely informed of the nature of the verification sought and from whom it is requested when, after an initial verification request remains unsatisfied, a follow-up request is necessary (see 11 NYCRR 65-3.6 [b]). As the claims of providers, such as MRI facilities, are subject to the medical necessity defense (Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2d Dept 2007]) notwithstanding that they may neither be responsible for the medical necessity determination nor, in the case of a nonphysician provider, competent to make such a determination, permitting verification requests of nonapplicants upon proper notification to the applicants furthers the regulatory objective that verification proceed “as expeditiously as possible” and assists applicants to determine the propriety of verification demands, to monitor the insurer’s exercise of the verification procedures and to facilitate the timely production of the verification. Accordingly, because defendant established that the instant verification requests remain unsatisfied, the action is premature and was properly dismissed (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569, 570 [2005]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]).

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.

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 (Scott Fairgrieve, J.), entered October 5, 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. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s corporate officer 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. Plaintiff appeals from the denial of 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 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 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, plaintiff’s motion for summary judgment was properly denied.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 15, 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, First District (Sondra K. Pardes, J.), dated August 29, 2005. The order granted defendant’s 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, defendant moved for summary judgment dismissing the complaint, asserting, inter alia, 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 initial and follow-up verification requests. By order dated August 29, 2005, the lower court agreed and granted defendant’s motion. The instant appeal by plaintiff ensued.

After receipt of plaintiff’s claim which was accompanied by an incomplete assignment of benefits form, defendant requested verification in the form of a copy of a proper assignment. In response, plaintiff sent an incomplete assignment. As a result, defendant served a follow-up verification request seeking a completed assignment. Since plaintiff has yet to provide defendant with an assignment executed by plaintiff’s assignor which, as required by the assignment of benefits form contained within the regulations promulgated by the New York State Insurance Department, sets forth, among other things, the date of the accident, the assignor’s address and the date that the form was signed, the 30-day statutory period in which defendant has to pay or deny the claim has been tolled (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co. , 295 AD2d 583 [2002]; Doshi Diagnostic Imagining Servs. v Progressive Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51430[U] [App Term, 9th & 10th Jud Dists]). Consequently, [*2]defendant has established that payment of no-fault benefits is not overdue and that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]).

Plaintiff’s contention that the verification requests lacked specificity and failed to advise plaintiff what documentation it needed to supply to defendant is lacking in merit (see generally Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Indeed, the record establishes that plaintiff responded to the first verification request by re-submitting an assignment of benefits form which, as previously noted, was not properly completed. In addition, in its opposition papers, plaintiff’s attorney stated that the second verification request was unnecessary and was an attempt by defendant to harass plaintiff.

In light of the foregoing, the court below properly granted defendant’s motion for summary judgment dismissing the complaint (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d at 493).
Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 15, 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 (Anna R. Anzalone, J.), dated March 18, 2005. The order granted plaintiffs’ motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits for health care services provided to plaintiffs’ assignor, plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the
fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). As a result, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Defendant asserts, inter alia, that it timely denied plaintiffs’ claims based on fraudulent billing. However, the denial of claim forms are dated February 17, 2004 and indicate that plaintiffs’ twelve claims were received by defendant between October 13, 2003 and December 13, 2003. Although defendant claimed to have mailed timely verification requests, which would extend the 30-day claim determination period (11 NYCRR 65-3.5, 65-3.8 [a] [1]), it failed to submit adequate proof that it did so (see New York & Prebyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Thus, defendant’s time to deny the claims was not tolled, the denials were untimely and defendant was [*2]precluded from raising most defenses as a result of its untimely denials (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defense of fraudulent billing (see Presbyterian Hosp. in City of N.Y., 90 NY2d at 285; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Accordingly, the order granting plaintiffs’ motion for summary judgment is affirmed.

Rudolph, P.J., Tanenbaum and LaCava, 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 (Peter Paul Sweeney, J.), entered October 13, 2005. The order granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days, and denied plaintiff’s cross motion for summary judgment.

Appeal from so much of the order as granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint based upon plaintiff’s failure to provide discovery and plaintiff cross-moved for summary judgment. Plaintiff’s cross 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. However, plaintiff did not address defendant’s motion to dismiss. The court below denied plaintiff’s cross motion, holding, inter alia, that plaintiff did not make a prima facie showing because the affidavit of plaintiff’s corporate officer was of no probative value since, among other things, it did not set forth facts in admissible form. The court also granted defendant’s motion to the extent of dismissing the complaint unless plaintiff provided a bill of particulars and responded to outstanding discovery demands within 45 days after service of the order with notice of entry. The instant appeal by plaintiff ensued.

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 [*2]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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___,
2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s cross motion for summary judgment was properly denied.

Since plaintiff failed to submit written opposition to defendant’s motion to strike the complaint, that branch of the order which granted defendant’s motion to the extent of requiring plaintiff to serve a bill of particulars and respond to defendant’s disclosure demands was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s motion is dismissed.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 12, 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 (Kathy J. King, J.), entered October 4, 2005. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s 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 to recover assigned first-party no-fault benefits, the court below denied plaintiff’s motion for summary judgment on the ground that there was an issue of fact as to medical necessity based upon two peer review reports. In the court below and on appeal, plaintiff argues, inter alia, that the peer review reports annexed to
defendant’s opposition papers were insufficient to establish an issue of fact because the peer review reports, purportedly executed in accordance with CPLR 2106, bore stamped facsimile signatures of the doctor who performed the peer reviews. We find that the peer review reports were not in admissible form since they only contained a stamped facsimile of the doctor’s signature which defendant failed to establish was placed thereon by the doctor (see CPLR 2106; Dowling v Mosey, 32 AD3d 1190 [2006]; Vista Surgical Supplies, Inc. v Travelers Ins. Co., 14 Misc 3d 128[A], 2006 NY Slip Op 52502[U] [App Term, 2d & 11th Jud Dists]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630, 632 [1971]; cf. General Construction Law § 46). In the absence of proof by defendant of a meritorious defense, plaintiff is entitled to summary judgment on both of its claims. Accordingly, the matter is remanded to the court below for a calculation of statutory interest and assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., Rios and Belen, JJ., concur. [*2]
Decision Date: March 12, 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 (Valerie Braithwaite Nelson, J.), entered November 29, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment to the extent of precluding plaintiff from offering any evidence at trial.

Appeal from so much of the order as granted defendant’s cross motion for summary judgment to the extent of precluding plaintiff from offering any evidence at trial 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 summary judgment based upon, among other things, plaintiff’s failure to comply with a so-ordered stipulation. Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel and various documents annexed thereto. The court below denied plaintiff’s motion on the ground that plaintiff did not make a prima facie showing due to the absence of an affidavit of merit executed by a person with personal knowledge of the facts. The court also granted defendant’s cross motion to the extent of precluding plaintiff from offering any evidence at trial. The instant appeal by plaintiff ensued.

Inasmuch as the affirmation of plaintiff’s counsel was of no probative value because it did not assert a basis of counsel’s personal knowledge of the facts and lay a sufficient foundation for [*2]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 CPLR 4518; Zuckerman v City of New York, 49 NY2d 557 [1980]; Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists]). Although plaintiff subsequently served an affidavit executed by its corporate officer, even if said affidavit was sufficient to demonstrate that the documents annexed to plaintiff’s papers were admissible as business records, plaintiff was not entitled to summary judgment because plaintiff cannot establish its entitlement to judgment as a matter of law by submitting as part of its reply papers sufficient evidence in admissible form to cure defects in its moving papers (see North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d & 11th Jud Dists]).

Since plaintiff failed to submit written opposition to the branch of defendant’s cross motion which was based upon plaintiff’s failure to comply with the so-ordered stipulation which required plaintiff to provide discovery, the branch of the order which granted defendant’s cross motion was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576
[2004]; Maino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s cross motion is dismissed.

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

Golia, J., concurs in a separate memorandum.

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 emphasize 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 8, 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 (Edgar G. Walker, J.), entered March 18, 2005. The order granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days, and denied plaintiff’s cross motion for summary judgment and awarded defendant $50 costs.

Appeal from so much of the order as granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint based upon plaintiff’s failure to provide discovery and plaintiff cross-moved for summary judgment. Plaintiff’s cross 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. However, plaintiff did not address defendant’s motion to dismiss. The court below denied plaintiff’s cross motion, holding, inter alia, that plaintiff did not make a prima facie showing because it failed to lay a sufficient foundation to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form. The court also granted [*2]defendant’s motion to the extent of dismissing the complaint unless plaintiff provided a bill of particulars and responded to outstanding discovery demands within 45 days after service of the order with notice of entry. The instant appeal by plaintiff ensued.

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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___,
2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s cross motion for summary judgment was properly denied.

Since plaintiff failed to submit written opposition to defendant’s motion to strike the complaint, that branch of the order which granted defendant’s motion to the extent of requiring plaintiff to serve a bill of particulars and respond to defendant’s disclosure demands was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s motion is dismissed.

Plaintiff’s remaining contention lacks merit.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 8, 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 (Timothy J. Dufficy, J.), entered August 16, 2005, deemed an appeal from a judgment entered on November 29, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 16, 2005 order granting plaintiff summary judgment, awarded plaintiff the principal sum of $4,289.15.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion denied.

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

On appeal, defendant raises for the first time 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 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 that it submitted its claim forms to defendant thereby entitling it to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., Misc 3d [A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., Misc 3d , 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, the judgment is reversed, the [*2]order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion is denied.

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: March 5, 2007