Barshay v 21st Century Centennial Ins. Co. (2018 NY Slip Op 51605(U))

Decided on November 9, 2018

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

Law Offices of Bryan Rothenberg (Konstantinos Tsirkas of counsel), for appellant. Law Offices of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered May 2, 2016. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

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

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

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Defendant’s motion for summary judgment was based upon, among other things, what purported to be an “affidavit” from defendant’s claim representative, which “affidavit” was not sworn to before a notary public (see e.g. Healthy Way Acupuncture, P.C. v Farmington Cas. Co., 49 Misc 3d 141[A], 2015 NY Slip Op 51595[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and therefore cannot be relied upon to raise an issue of fact as to the timeliness of defendant’s denial of claim forms, let alone demonstrate, as a matter of law, that defendant had timely denied the claims at issue on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.