Bronze Acupuncture, P.C. v Travelers Ins. Co. (2014 NY Slip Op 50873(U))

Decided on May 22, 2014

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 (Peter Paul Sweeney, J.), entered September 29, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is denied 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, plaintiff seeks to recover on a bill for $172.81 and the $27.19 balance of a bill for $55.69. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. At issue is defendant’s application of a $200 deductible to the claims in question.

The affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim forms (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]), that the applicable insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] § 65-1.6), and that defendant had denied the claims at issue due to said deductible (see Insurance Law § 5102 [b] [3]). Plaintiff’s contention that defendant improperly based its motion upon an out-of-state affidavit that was not in compliance with CPLR 2309 (c) was improperly raised for the first time on appeal and, thus, was waived (see Talley v Peck, 23 Misc 3d 141[A], 2009 NY Slip Op 51028[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In any event, defendant’s affidavit which alleged facts concerning the applicability of the deductible was notarized in New York State, and the out-of-state affidavit establishing the proper mailing of the denial of claim forms was accompanied by a proper certificate of conformity (see CPLR 2309 [c]).

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted (see Innovative Chiropractic, P.C. v Progressive Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Pesce, P.J., Aliotta and Solomon, JJ., concur.