Art of Healing Medicine, P.C. v Amica Mut. Ins. Co. (2013 NY Slip Op 52014(U))

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