SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 15, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 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, defendant moved for summary judgment dismissing the complaint based upon, among other things, plaintiff’s assignor’s failure to appear for scheduled examinations under oath (EUOs). In an order entered March 15, 2012, the Civil Court denied defendant’s motion on the ground that the certificate of conformity accompanying the affidavit, executed out of the state by defendant’s employee, was defective. Defendant appeals from the order and we reverse.

Defendant appropriately sought to cure the defect in its original certificate of conformity by annexing to its reply papers a certificate of conformity which rectified the defect (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). [*2]Although the Civil Court held that the corrected certificate of conformity was still not in proper form, we note that Real Property Law § 299-a (2) (a) specifically states that the signature on the certificate of conformity “shall be presumptively genuine” and the qualification of the person signing as a person authorized to make such certificate “shall be presumptively established by the recital thereof in the certificate.” As the certificate of conformity complied with the statutory requirements of Real Property Law § 299-a, the out-of-state affidavit which it accompanied should have been considered by the Civil Court and “treated as if taken within the state” (CPLR 2309 [c]).

In support of its motion for summary judgment, defendant submitted an affirmation from the attorney who had been responsible for conducting the EUOs at issue. His affirmation established that the EUO scheduling letters had been mailed to the assignor in accordance with his law firm’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that, based on the attorney’s personal knowledge, the assignor had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). The affidavit submitted by defendant’s special claims representative and the out-of-state affidavit submitted by defendant’s centralized administrative team supervisor (which, as noted above, was accompanied by a proper certificate of conformity) together established that the denial of claim forms, which, among other things, denied plaintiff’s claims based upon the assignor’s failure to appear at the EUOs, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16).
Since an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and defendant established by admissible evidence plaintiff’s assignor’s noncompliance with this condition precedent, defendant’s motion should have been granted. Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: December 03, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered May 3, 2012, deemed from a judgment of the same court entered May 29, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 3, 2012 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion to dismiss the complaint, awarded plaintiff the principal sum of $5,486.66

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the record indicates that, subsequent to the assignment of benefits from plaintiff’s assignor to plaintiff and the provision of services by plaintiff to its assignor, plaintiff commenced this action in the Civil Court, and plaintiff’s assignor commenced an arbitration proceeding for a determination of whether defendant Unitrin Direct Insurance Company or Arch Insurance Company should provide no-fault coverage to him. On March 23, 2011, plaintiff moved in this action for summary judgment, and the following day, the arbitrator issued a decision, which stated that, based upon the credible evidence before him, either defendant or Arch Insurance Company [*2]would be the source of first-party no-fault benefits. The arbitrator directed Arch Insurance Company to commence processing plaintiff’s claims, because that insurer had received notice of the claims first. Defendant opposed plaintiff’s motion and, based on the arbitrator’s decision, cross-moved to dismiss the complaint pursuant to CPLR 3212 and CPLR 3211 (a) (5). Plaintiff submitted opposition. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, we find that plaintiff established its prima facie entitlement to summary judgment by proof of the submission to defendant of the claim forms, proof of the fact and the amount of the loss sustained, and proof that defendant had failed to pay or deny the claims within the requisite 30-day period (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; 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 burden shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion and in support of its own cross motion, defendant submitted the affirmation of its counsel, who argued, among other things, that plaintiff’s action is barred by the decision in the arbitration proceeding. However, plaintiff was not named in the arbitration and was not in privity with its assignor, who was a named party in that proceeding, as the assignment of benefits had been executed before the arbitration proceeding had been commenced, and plaintiff otherwise had no full and fair opportunity to appear and defend its interests in that proceeding. Consequently, the instant action is not subject to dismissal by virtue of the decision in the arbitration hearing (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co., 37 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2012]). As a result, defendant’s cross motion to dismiss the complaint was properly denied and plaintiffs motion for summary judgment was properly granted.

Accordingly, the judgment is affirmed.

Rios, J.P., Pesce and Solomon, JJ., concur.
Decision Date: November 29, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered January 18, 2012. The order granted defendant’s motion to stay the action pending a final determination of a Supreme Court declaratory judgment action.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to stay the action, pursuant to CPLR 2201, pending a final determination of a declaratory judgment action that had been commenced by defendant in the Supreme Court, Nassau County, entitled Geico Ins. Co. v Andre (Index No. 8085/2011). In that action, Geico alleged that the defendants named therein had engaged in a large-scale illegal scheme involving staged accidents and fraudulent billing practices and therefore Geico sought a declaration that it was not obligated to pay, among other things, no-fault benefits to those defendants. Both plaintiff and its assignor are named as defendants in the declaratory judgment action.

“[A] court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources” (Zonghetti v [*2]Jeromack, 150 AD2d 561, 563 [1989]). Under the circumstances presented herein, it was not an improvident exercise of discretion for the Civil Court to grant defendant’s motion to stay this action pending the resolution of the Supreme Court declaratory judgment action (see CPLR 2201).

Accordingly, the order is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: November 29, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered December 1, 2011. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted on the condition that defendant, within 60 days of the date of this order and decision, serve upon plaintiff and file with the Clerk of the Civil Court, Kings County, an affidavit by Leigh Howie, identical to the affidavit by Leigh Howie submitted by defendant in support of its motion for summary judgment dismissing the complaint, accompanied by a certificate of conformity in compliance with CPLR 2309 (c) and Real Property Law § 299-a (1). In the event that defendant fails to duly serve and file such an affidavit, the order, insofar as appealed from, is affirmed, with $25 costs.

As is relevant to this appeal in an action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the [*2]ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant submitted an affidavit by an employee of Crossland Medical Review Services, Inc. (Crossland), an entity which had scheduled the IMEs on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with Crossland’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). An affidavit by the chiropractor/acupuncturist who was to perform the IMEs established that plaintiff’s assignor had failed to appear for the scheduled IMEs. Defendant also submitted an affidavit by defendant’s claims representative, Leigh Howie, to demonstrate that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant appeals from so much of an order of the Civil Court as denied its motion.

The affidavit of Leigh Howie was executed out of state. Although it was accompanied by a document that purported to be a certificate of conformity, the certificate did not comply with Real Property Law § 299-a and, thus, the affidavit did not comply with CPLR 2309 (c) (see Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51629[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). While plaintiff timely objected to the form of defendant’s affidavit, a certificate of conformity can be given nunc pro tunc effect once the proper certificate is obtained (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Cosentino v Molina, 36 Misc 3d 130[A], 2012 NY Slip Op 51282[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, defendant’s motion for summary judgment dismissing the complaint should have been conditionally granted (see Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 26 Misc 3d 131[A], 2010 NY Slip Op 50043[U] [App Term, 1st Dept 2010]; see generally Sandoro v Andzel, 307 AD2d 706 [2003]).

Rios, J.P., Pesce and Solomon, JJ., concur.
Decision Date: November 29, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 2, 2011. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. Defendant’s motion papers set forth that defendant had timely denied the claims at issue based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s argument, the affirmation submitted by defendant established that the EUO scheduling letters had been timely mailed in accordance with its law firm’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, while plaintiff argues that certain [*2]letters submitted by defendant, which purported to delay payment of the claims, were insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), in this case the EUO scheduling letters themselves were sufficient to toll the claim determination period.

Finally, plaintiff argues that the affidavit submitted by defendant in order to prove that the denial of claim forms had been timely mailed should not have been considered because it did not comply with CPLR 2309 (c). However, that argument is raised for the first time on appeal, and is therefore waived (see Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]; 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, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jiminez Salta, J.), entered March 31, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the submission of the bills and the fact and the amount of the loss sustained.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $1,916.46 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, stating that the only issue for trial was the medical necessity of the services at issue (see CPLR 3212 [g]).

Contrary to defendant’s argument on appeal, plaintiff established the submission of the bills and the fact and amount of the loss sustained. We therefore do not disturb the Civil Court’s implicit finding that those facts had been established for all purposes in the action. To the extent that defendant argues that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued claim denials that were conclusory, vague, or without merit as a matter of law, this is an incorrect reading of the order, which directs that a trial be held on the issue of medical necessity.

In support of its cross motion, defendant submitted a peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for nerve testing performed on August 19, 2009, for which plaintiff billed $1,916.46. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $1,916.46 is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[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]; 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]).

However, with respect to a bill for $590.01 for other testing performed on August 19, 2009, defendant failed to demonstrate that these services were not medically necessary, as it relied upon an independent medical examination performed nearly one year later, which did not address these services.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $1,916.46 is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered September 13, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, stating that the only issue for trial was the medical necessity of the supply at issue (see CPLR 3212 [g]).

In support of its cross motion, defendant submitted a peer review report and an affidavit executed by the chiropractor who had performed the peer review, which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the medical supply at issue. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic [*2]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., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 21, 2011, deemed from a judgment of the same court entered November 29, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 21, 2011 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Upon a review of the record, we find that defendant established, prima facie, that it had paid the claim at issue, and that plaintiff has failed to raise a triable issue of fact.

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 5, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant denied the claim at issue based upon the alleged failure by plaintiff’s assignor to appear at duly scheduled examinations under oath (EUOs). However, according to the affirmation submitted by defendant’s counsel, the initial EUO had been rescheduled by mutual agreement, prior to the date it was to occur. A mutual rescheduling, which occurs prior to the date of the scheduled EUO, does not constitute a failure to appear (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d & [*2]11th Jud Dists 2006]). Therefore, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not prove that plaintiff had failed to comply with a condition precedent to coverage (see DVS Chiropractic, P.C., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 14, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, stating that the only issue for trial was the medical necessity of the services at issue (see CPLR 3212 [g]).

In support of its cross motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the services at issue. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d [*2]136[A], 2009 NY Slip Op 51502[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]; 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., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013