Bay Med. P.C. v Geico Ins. Co. (2013 NY Slip Op 52084(U))

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered January 13, 2010. The judgment, entered pursuant to a December 15, 2009 order of the same court granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the sum of $2,525.88.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered December 15, 2009 as granted plaintiff’s motion for summary judgment and as denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $1,755.42, $258.56, $42.51, $71.49, $196.79, $139.34 and $65.39 is vacated, plaintiff’s motion for summary judgment is denied and those branches of defendant’s cross motion are granted.

Plaintiff’s assignor, a New Jersey resident, was injured in a motor vehicle accident. The vehicle was insured by a New Jersey automobile insurance policy issued to plaintiff’s assignor, which policy provided that it is to be interpreted “pursuant to the laws of the state of New Jersey.” Plaintiff, a New York business entity, rendered medical services to the assignor in New York and submitted claims to defendant. Plaintiff subsequently commenced this action, alleging [*2]that payment of no-fault benefits on the 10 claims it had submitted to defendant was overdue and, thereafter, moved for summary judgment. In opposition to plaintiff’s motion, defendant argued that New Jersey law controlled and that, under New Jersey law, plaintiff had failed to establish its prima facie entitlement to summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that, in effect, the Civil Court lacked jurisdiction because, pursuant to New Jersey law and the New Jersey policy of insurance, the matter was required to be submitted to dispute resolution. In the alternative, defendant’s cross motion sought summary judgment dismissing the complaint on the ground that plaintiff was not entitled to recover no-fault benefits. The Civil Court, refusing to consider defendant’s out-of-state affidavit in support of its cross motion since defendant had failed to submit a certificate of conformity, by order entered December 15, 2009, granted plaintiff’s motion and denied defendant’s cross motion. Defendant appeals from a judgment, entered pursuant to the December 15, 2009 order, awarding plaintiff the sum of $2,525.88.

Contrary to defendant’s contention, the insurance policy in question does not provide for mandatory arbitration; rather, it merely states that a “matter shall be submitted to dispute resolution on the initiative of any party to the dispute.” Moreover, dispute resolution is not mandatory in the case at bar pursuant to NJSA § 39: 6A-5.1 (a), as implemented by NJAC § 11:3-5.1 (a) (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273 [2009]). Consequently, the branch of defendant’s cross motion seeking to dismiss, in effect, for lack of jurisdiction, was properly denied. Inasmuch as, on the record before us, neither party has sought to compel dispute resolution, we do not reach any other issue regarding the dispute resolution provision and its effect (see Advanced Med. Diagnostics of Queens. P.C. v GEICO Ins. Co., 38 Misc 3d 140[A], 2013 NY Slip Op 50219[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

The Restatement (Second) of Conflict of Laws § 187 (3) provides that, “[i]n the absence of a contrary indication of intention, the reference [to the law of the state chosen by the parties] is to the local law of the state of the chosen law” (IRB-Brasil Resseguros, S.A. v Inepar Invs., S.A., 20 NY3d 310, 316 [2012]). Consequently, the insurance contract’s provision requiring the policy, and any amendments, to be interpreted according to New Jersey law results in the application of New Jersey’s substantive law, not the application of conflict of law principles (see id.).

Inasmuch as plaintiff failed to establish, in the first instance, the medical necessity of the rendered services (see Elkins v New Jersey Mfrs. Inc. Co., 244 NJ Super 695, 583 A2d 409 [1990]), and failed to show that defendant did not properly pay any claim within 60 days after it had been furnished with written notice of the fact of a covered loss and the amount of same (see NJSA § 39:6A-5 [g]), under New Jersey law, plaintiff’s motion for summary judgment should have been denied. Moreover, the Civil Court should have considered the out-of-state affidavit of an employee of defendant’s claims division which defendant submitted in support of its cross motion despite the absence of a certificate of conformity as required by CPLR 2309 (c), since such a defect is not fatal (see e.g. Matos v Salem Truck Leasing, 105 AD3d 916 [2013]; Fredette v Town of South Hampton, 95 AD3d 940, 942 [2012]; Smith v Allstate Ins. Co., 38 AD3d 522, 523 [2007]). The relevant affidavit established that plaintiff’s claims for no-fault benefits in the amounts of $1,755.42, $258.56, $42.51, $71.49, $196.79, $139.34 and $65.39 had been paid by [*3]defendant in accordance with the applicable New Jersey fee schedule, within 60 days (see NJSA § 39:6A-5 [g]) after defendant had been furnished with written notice of the fact of a covered loss and of the amount of same. Inasmuch as plaintiff failed to rebut this showing as to the foregoing seven claims, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these seven claims should have been granted.

Accordingly, the judgment is reversed, so much of the order entered December 15, 2009 as granted plaintiff’s motion for summary judgment and as denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $1,755.42, $258.56, $42.51, $71.49, $196.79, $139.34 and $65.39 is vacated, plaintiff’s motion for summary judgment is denied and those branches of defendant’s cross motion are granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 09, 2013