Decided on April 18, 2016

Decided on April 13, 2016

Decided on March 28, 2016

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Nancy M. Bannon, J.) entered August 22, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Nancy M. Bannon, J.) entered August 22, 2013, reversed, with $10 costs, defendant’s motion denied, and the complaint reinstated.

The defendant-insurer’s motion for summary judgment dismissing this first-party no-fault action should have been denied. Initially, we note that Civil Court correctly determined that defendant’s documentary submissions were sufficient to establish, prima facie, that its denial of claim forms were timely and properly mailed (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]; AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., ____ AD3d_____, 2016 NY Slip Op 00916 [2016]), and that the peer review reports of defendant’s chiropractor were in admissible form (see Furtow v Jenstro Enters., Inc., 75 AD3d 494, 495 [2010]; Collins v AA Trucking Renting Corp., 209 AD2d 363 [1994]).However, the copy of the November 4, 2011 peer review report, ostensibly submitted by defendant to establish the lack of medical necessity for the medical supplies underlying plaintiff’s claims in the amounts of $481.55 and $540.94, was incomplete, since certain pages of the report were missing, and was thus insufficient to establish the defense of lack of medical necessity.

The October 25, 2011 peer review report submitted by defendant made a prima facie showing that the medical supplies underlying plaintiff’s claims in the amounts of $1,107.70 and $1,150 were not medically necessary. However, the medical affidavit submitted by plaintiff, which specified the assignor’s medical conditions and described the intended benefits of each of the medical supplies at issue, was sufficient to raise a triable issue of fact as to medical necessity [*2](see AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., supra; Amherst Med. Supply, LLC v A. Cent. Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51800[U][App Term, 1st Dept. 2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered March 30, 2015, which, upon reargument, adhered to a prior order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment on its claims in the amount of $2,005.25.

Per Curiam.

Order (Gerald Lebovits, J.), entered March 30, 2015, insofar as appealed from, reversed, without costs, defendant’s motion for summary judgment denied, complaint reinstated, and plaintiff’s cross motion for summary judgment in the principal amount of $2,005.25 granted.

While the motion court purported to deny plaintiff’s motion for reargument, the merits of the motion were addressed and the court, in effect, granted reargument, even though it ultimately adhered to its original determination (see Jackson v Leung, 99 AD3d 489, 490 [2012]; Matter of State Farm Mut. Auto Ins. Co. v King, 304 AD2d 390 [2003]). Thus, the March 30, 2015 order is appealable.

Turning to the merits, plaintiff established prima facie that its no-fault claims in the amount of $2,005.25 were overdue, since they were not “denied or paid” within the prescribed 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins, Co., 25 NY3d 498, 507 [2015]). In opposition, defendant failed to raise a triable issue as to whether it had timely denied the claims (see NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702, 703 [2011]). Contrary to Civil Court’s determination, defendant’s letter stating, in essence, that payment was delayed pending independent medical examinations (IMEs) of plaintiff’s assignor did not serve to toll the 30-day statutory period (id.). Nor has defendant otherwise raised a triable issue as to whether the 30-day period was tolled by verification requests that preceded its receipt of the underlying claims (see Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 164 [2013]).

Inasmuch as the claims at issue were not timely denied, defendant is precluded from [*2]asserting its defense of lack of medical necessity (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]).

[*1]

Law Office of George T. Lewis, Jr., Syosset (George T. Lewis, Jr. Of counsel), for appellant.

Bruno, Gerbino & Soriano LLP, Melville (Mitchell L. Kaufman of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Eileen A. Rakower, J.), entered August 25, 2014, vacating the master arbitration decision of Frank G. Godson dated December 17, 2013, and reinstating the award of arbitrator Laura Yantsos dated September 25, 2013, unanimously affirmed.

It is undisputed that petitioner’s second follow-up request for an examination under oath was sent 11 days after respondent failed to appear on the date set in the first request and that the 10th day fell on a Sunday (see 11 NYCRR 65-3.6 [b]). Plaintiff was entitled to an extension of time to the next business day to send its second follow-up request (see General Construction Law § 25-a). Concur—Friedman, J.P., Andrias, Saxe and Kapnick, JJ.

[*1]

Bruno, Gerbino & Soriano, LLP, Melville (Matthew Lavoie of counsel), for appellant.

Law Office of George T. Lewis, Jr., P.C., Syosset (George T. Lewis, Jr. of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about September 17, 2014, which denied plaintiff’s motion for a de novo review of a master arbitrator’s findings dated December 17, 2013, and for summary judgment declaring in its favor, and sua sponte dismissed the complaint, unanimously modified, on the law, to reinstate the complaint and grant the part of the motion seeking a de novo review of the arbitrator’s findings, and otherwise affirmed, without costs.

Plaintiff satisfied the requirements for a de novo adjudication of this dispute pursuant to Insurance Law § 5106 (c).

Plaintiff’s second follow-up request for an examination under oath was sent 11 days after defendant failed to appear on the date set in the first request; the 10th day fell on a Sunday (see 11 NYCRR 65-3.6 [b]). Plaintiff correctly argues that it was entitled to an extension of time to the next business day to send its second follow-up request (see General Construction Law § 25-a). Concur—Friedman, J.P., Andrias, Saxe and Kapnick, JJ.

Decided on February 18, 2016

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered November 12, 2014, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Tanya R. Kennedy, J.), entered November 12, 2014, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, without costs.

Defendant’s motion for summary judgment dismissing this first-party no-fault action on the ground of lack of medical necessity should have been denied. The independent medical examination (IME) report of defendant’s chiropractor/acupuncturist, one Antoinette Perrie, was not in admissible form and should not have been considered. The report erroneously identified Dr. Perrie as a licensed “physician” (see Paul-Austin v McPherson, 111 AD3d 610 [2013]), and was denominated as an affirmation purportedly made under the authority of CPLR 2106. However, neither a chiropractor nor an acupuncturist may affirm the contents of a medical report pursuant to CPLR 2106 (see Walker v Village of Ossining, 18 AD3d 867, 868 [2005]; Shinn v Catanzaro, 1 AD3d 195, 197 [2003]). Nor was the report shown to have been properly “sworn to” before a notary or other authorized official (see Hartley v White, 63 AD3d 1689, 1690 [2009]; Feggins v Fagard, 52 AD3d 1221, 1223 [2008]; see also Gleason, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, C2106:4. P 609-610).

Plaintiff’s cross motion for summary judgment was properly denied, since it failed to establish, prima facie, that its claims were overdue, i.e., that its claims were not “denied or paid” within the prescribed 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decided on January 13, 2016