[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 14, 2014

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant. Conway, Farrell, Curtin & Kelly P.C., New York City (Jonathan T. Uejio of counsel), for respondent.

{**43 Misc 3d at 50} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits from an out-of-state insurer for medical services plaintiff had provided to its assignor as a result of injuries sustained in an automobile accident that occurred in New York. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint, contending, among other things, that it had not been properly served with process and that the court lacked jurisdiction over it. Plaintiff opposed the cross motion. The Civil Court denied the motion and cross motion. Thereafter, defendant moved for leave to renew and reargue its prior cross motion, contending, among other things, that an out-of-state affidavit by its corporate officer, which had been submitted in support of the cross motion for summary judgment, was in compliance with CPLR 2309 (c), and that the court should have considered the facts alleged therein, which established that the court lacked jurisdiction over defendant. Plaintiff opposed the motion, contending, among other things, that the affidavit was inadmissible and that, in any event, had it been considered, it would not have changed the court’s prior determination denying{**43 Misc 3d at 51} summary judgment to defendant. The Civil Court granted defendant’s motion for leave to renew and reargue, and, upon renewal and reargument, granted defendant’s cross motion for summary judgment dismissing the complaint, albeit on non-jurisdictional grounds.

At the outset, we note that, despite defendant’s failure to submit a proper certificate of conformity together with the out-of-state affidavit of its corporate officer, as required by CPLR 2309 (c), this omission was not a fatal error (see CPLR 2001; Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013] Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680 [2013] Fredette v Town of Southampton, 95 AD3d 940 [2012] Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) and, therefore, the affidavit has been reviewed on this appeal. In view of the foregoing, we find that the Civil Court properly granted defendant leave to renew and reargue its motion for summary judgment.

Turning to the merits, we note that the record is devoid of any indication as to how or where service of process upon defendant was made. Nevertheless, defendant asserts that, however service was effectuated, there was no jurisdictional basis therefor since, as an out-of-state insurance company, jurisdiction could not have been obtained over it by virtue of service [*2]upon the New York State Superintendent of Insurance pursuant to Insurance Law § 1212 or § 1213.

In support of its cross motion, defendant demonstrated, prima facie, through documentary evidence, that it was not authorized to conduct an insurance business in New York and, as a result, jurisdiction could not be obtained over it pursuant to Insurance Law § 1212. Furthermore, defendant established, prima facie, through the affidavit of its corporate officer, that neither it nor its reciprocal insurers, affiliates, or subsidiaries provide, write, or sell insurance in the State of New York or to its residents. They do not provide goods or services within New York nor do they transact business in New York and they do not have any offices or agents in this state. Thus, defendant did not perform any of the acts specified in Insurance Law § 1213 (b) (1) in New York and, as a result, jurisdiction could not be obtained over it pursuant to Insurance Law § 1213 (see Farm Family Mut. Ins. Co. v Nass, 121 AD2d 498 [1986]).

As previously indicated, the record is devoid as to how or where service of process was made. We note that, for the same{**43 Misc 3d at 52} reasons that jurisdiction could not be obtained pursuant to Insurance Law § 1213, it could not be obtained under the long-arm statute (CCA 404), since the requirements of each statute are similar (see e.g. Chase Manhattan Bank v AXA Reins. UK, 300 AD2d 16 [2002] Cavaliere v New Jersey Ins. Underwriting Assn., 236 AD2d 502 [1997] American Ind. Ins. v Heights Chiropractic Care, P.C., 12 Misc 3d 228 [Sup Ct, NY County 2006]). This is especially true here, where defendant established through the affidavit of its corporate officer that there was no transaction of business in the State of New York, let alone New York City. We further note that the mere unilateral act of an automobile insurer’s insured of driving into New York State, without more, is insufficient to permit a New York court to exercise long-arm jurisdiction over the out-of-state insurer (see Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005] Franklin v Catawba Ins. Co., 291 AD2d 371 [2002] Matter of New York Cent. Mut. Ins. Co. v Johnson, 260 AD2d 638 [1999]).

The burden of proving jurisdiction is on the party asserting it and, in the face of defendant’s contentions raised in its cross motion, plaintiff was obligated to come forth with definitive evidentiary facts to support jurisdiction over the out-of-state insurer (see Bunkoff Gen. Contrs. v State Auto. Mut. Ins. Co., 296 AD2d 699 [2002] Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832 [1988] Lamarr v Klein, 35 AD2d 248 [1970]); however, it failed to do so. Thus, jurisdiction was never acquired over defendant.

Plaintiff’s remaining contentions are found to be without merit. Accordingly, the order of the Civil Court is affirmed, albeit on grounds other than those stated by the Civil Court.

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

Supreme Court, New York County

101549/12

Plaintiff:

Bryan Cave, LLP

1290 Avenue of the Americas

New York, NY 10104

Defendants:

Leon Kucherovsky, Esq. (for Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc.)

115 South Corona Avenue

Valley Stream, NY 11580

Doris Ling-Cohan, J.

This is an action for declaratory judgment arising out of an alleged motor vehicle collision on July 21, 2011. Defendants Akil Aime (Akil), Jeffrey J. Aime (Jeffrey), and Lynval Howell (Lynval) (collectively “Defendant Claimants”) were allegedly injured in such motor vehicle accident involving a U-Haul truck, in which Defendant Claimants were passengers. The U-Haul truck is insured by plaintiff Repwest Insurance Company (Repwest Ins.). No physical injuries were reported on the date of the accident, Defendant Claimants refused medical attention at the scene, and the U-Haul sustained no damage. Thereafter, Defendant Claimants began seeking treatment, for injuries alleged sustained in the July 21, 2011 collision, from defendants Advantage Radiology, P.C., A & F Medical, P.C., Comprehensive Psychological Evaluation, P.C. (Comprehensive Psychological), Living Well Chiropractic, P.C., Metropolitan Medical & Surgical, P.C., New Age Acupuncture, P.C., O & M Medical, P.C., NY Universal Medical, P.C., Orthoplus Products, Inc. (Orthoplus), Psychological Evaluation & Testing Services, LLC, Rehabxpress PT, P.C., and RM Physical Therapy, P.C. (collectively “Medical Provider Defendants”). Such Medical Provider Defendants submitted claims to plaintiff Repwest Ins. as alleged assignees of Defendant Claimants.

On November 8, 2011, plaintiff Repwest Ins., through its attorney, sent a letter to each Defendant Claimant, as well as to defendant Akil’s attorney and defendant Jeffrey’s attorney, requesting that each Defendant Claimant attend an examination under oath (EUO) on November 22, 2011. As each Defendant Claimant failed to appear at such EUO, plaintiff Repwest Ins.’s attorney sent another letter, dated December 1, 2011, to each Defendant Claimant, as well as to defendant Akil’s attorney and defendant Jeffrey’s attorney, requesting that each Defendant Claimant appear for an EUO on December 15, 2011. While defendant Akil and defendant Lynval both failed to appear at such EUO, defendant Jeffrey contacted plaintiff Repwest Ins.’s attorney’s office by telephone to reschedule his EUO. As defendant Jeffrey was represented by an attorney, he was informed that his counsel needed to call to reschedule. Thereafter, defendant Jeffrey failed to appear at the EUO scheduled for December 15, 2011, and no call was received by his attorney to reschedule. By letter dated January 3, 2011, sent to defendant Jeffrey and his attorney, plaintiff Repwest Ins.’s attorney requested that defendant Jeffrey appear for an EUO on January 18, 2012. Defendant Jeffrey failed to appear at such EUO. Subsequently, plaintiff Repwest Ins. denied all no-fault coverage for this claim based upon Defendant Claimant’s failure to attend the scheduled EUOs.

In this action, plaintiff Repwest Ins. seeks a declaration that it owes no duty to pay No-Fault benefits to any of the named defendants on the ground that the Defendant Claimants failed to appear for duly scheduled EUOs, in violation of the No-Fault regulations and in violation of a condition precedent to coverage for all No-Fault claims submitted by the Medical Provider Defendants.

By Decision/Order dated September 19, 2013, a default judgment was granted against all defendants except for defendants Comprehensive Psychological and Orthoplus (collectively [*2]“Answering Defendants”), the only remaining defendants ^[FN1].

Plaintiff Repwest Ins. now moves for summary judgment against the Answering Defendants, declaring that such defendants are not entitled to no-fault coverage, as Defendant Claimants failed to attend the EUOs. The Answering Defendants jointly oppose plaintiff Repwest Ins.’s motion.

DISCUSSION

The standards of summary judgment are well settled. Summary judgment should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case”. Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure…to do [so]”. Zuckerman v City of New York, 49 NY2d 557, 560 (1980). However, the Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat such a motion. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).

Here, plaintiff Repwest Ins.’s motion for summary judgment against the Answering Defendants is granted. In support of its motion, plaintiff Repwest Ins. proffers, inter alia, the two letters sent to defendant Akil and her attorney requesting her appearance at two EUOs, the two letters sent to defendant Lynval requesting his appearance at two EUOs, and the three letters sent to defendant Jeffrey and his attorney requesting his appearance at three EUOs, the affidavits of service for all such letters, and an affidavit from Joseph R. Federici, Esq. stating that on each scheduled EUO date, he waited for the Defendant Claimants and each Defendant Claimant failed to attend the scheduled EUOs. As such, plaintiff Repwest Ins. has shown that it arranged two EUOs for defendant Akil and Lynval, and three EUOs for defendant Jeffrey, that Defendant Claimants were all notified of such EUOs by mail, and that all Defendant Claimants failed to attend the EUOs.

The Appellate Division, First Department, has found that “failure to appear for IMEs requested by the insurer when . . . [it] may reasonably require . . . is a breach of a condition precedent to coverage under the No-Fault policy.” Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 (1st Dep’t 2011)(internal quotations and citations [*3]omitted); see also 11 NYCRR 65-1.1. As such, “when defendants’ assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued.” Id. Thus, plaintiff Repwest Ins. has established entitlement to summary judgment as a matter of law declaring that the Answering Defendants are not entitled to no-fault coverage for the motor vehicle accident that occurred on July 21, 2011.

In opposition, the Answering Defendants proffer only an attorney’s affirmation, which is not based upon the requisite personal knowledge and is insufficient to raise any factual issues to warrant a denial of the within motion. See GTF Marketing Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 (1985); Wehringer v Helmsley Spear, Inc., 91 AD2d 585, 585 (1st Dep’t 1982). New York courts have consistently held that “a bare affirmation of . . . [an] attorney who demonstrated no personal knowledge . . . is without evidentiary value and thus unavailing.” Zuckerman v City of New York, 49 NY2d 557, 563 (1980). Furthermore, an affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 (1 Dept 1981), aff’d 54 NY2d 715 (1981). Thus, the Answering Defendants’ attorney’s conclusory and speculative affirmation, is insufficient to raise any factual issues to warrant a denial of the within motion. See GTF Marketing Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 (1985).

Even if this court were to consider such attorney affirmation, the Answering Defendants have failed to raise an issue of fact sufficient to preclude summary judgment. Specifically, the Answering Defendants argue that the EUO requests were defective in that they made improper demands for the production of documents, that Defendant Claimants failed to appear at the EUOs due to the defective requests, and that plaintiff Repwest Ins. has failed to demonstrate that Defendant Claimants failed to appear at the EUOs. In support of its argument, the Answering Defendants cite Dynamic Medical Imaging, P.C. v State Farm Mutual Automobile Ins. Co., 29 Misc 3d 278 (Dist. Ct, 1st Dist., Nassau Cty. 2010). The District Court in Dynamic held that EUO requests requiring claimants to provide documentation pertaining to the validity of the professional corporation prior to the EUOs were improper, as a Mallela defense is not precludable. The Dynamic Court went on to hold that “[i]f a carrier believes the provider/assignee is subject to a Mallela defense, the proper way to assert it is as an affirmative defense in its answer.” Id. at 284. In holding that the EUO requests were improper, and, thus, could not be the basis for obtaining summary judgment, the Dynamic Court stated that “[i]n addition to appearing for an [EUO], the assignee can be compelled to execute a written proof of claim under oath and provide other pertinent information as may assist the insurer in determining the amount due and payable. … The [no-fault] regulations only permit the insurer to obtain written information to verify the claim. Nothing in the no-fault regulations permits an insurer to request an assignee to produce corporate organizational and financial douments”. Id. at 283 (internal citations omitted).

Here, the documents requested in the EUO requests consist of, inter alia, insurance policies, documents related to bodily injuries from 2009 to date, identification, and photographs relating to the July 21, 2011 collision. Such documents, indisputably, are not related to a Mallela defense, and, thus, Dynamic is not applicable herein. Moreoever, plaintiff Repwest Ins. has proffered the affirmation of Joseph R. Federici, Esq., in which he clearly states that on each [*4]scheduled EUO date and time, he personally waited for each Defendant Claimant, and that each Defendant Claimant failed to appear. Thus, plaintiff Repwest Ins.’s motion for summary judgment is granted.

Accordingly, it is

ORDERED that plaintiff Repwest Insurance Company’s motion for summary judgment against defendants Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc. is granted; and it is further

ORDERED, ADJUDGED and DECLARED that the defendants Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc. are not entitled to no-fault coverage, from plaintiff Repwest Insurance Company, for the motor vehicle accident that occurred on July 21, 2011; and it is further

ORDERED that the Clerk is directed to enter judgment in favor of plaintiff; and it is further

ORDERED that, within 30 days of entry, plaintiff shall serve upon defendants Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc. a copy of this decision and order, together with notice of entry.

This constitutes the Decision and Order of the Court.

Dated: January 13, 2014

DORIS LING-COHAN, J.S.C.

Footnotes

Footnote 1: The Court notes that the Answering Defendants’ amended affirmation in opposition to plaintiff Repwest Ins.’s motion for summary judgment states that it is a joint opposition by defendants Comprehensive Psychological, Orthoplus, and NY Universal Medical, P.C. However, by Decision/Order dated September 19, 2013, a default judgment was entered against NY Universal Medical, P.C. Defendant NY Universal Medical, P.C. has not filed an answer in this action and has failed to move to vacate its default. As such, the affirmation in opposition will only be considered as to defendants Comprehensive Psychological and Orthoplus.

Supreme Court, New York County

101885/12

Appearances:

Attorneys Plaintiff: Jason Tenenbaum, P.C.

595 Stewart Avenue Suite 400

Garden City, NY 11530

Tele. No. (516) 750-0595

Attorneys Defendant: Hilda Miranda, Pro Se

3438 110th Street Apt. A

Corona, NY 11368

Tele. No. (None Listed)

Louis B. York, J.

The following papers, numbered 1 towere read on this motion for Default Jgmt.

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ____________________________

Answering Affidavits — Exhibits ________________________________________________________ [*2]

Replying Affidavits ___________________________________________________________________

Cross-Motion:[ ] Yes[ ] No

This is a motion seeking a declaratory judgment on default against defendants Miranda, Elmhurst United Medical, P.C., Grand Medical Supply, Inc., McKay, New York Hospital of Queens, NYHMCQ Surgery, Quality Psychological Services, P.C., and Diagnostic Medicine, P.C. and against appearing defendants Flushing Hospital and Medical Center, Kath Medical, P.C., and Shara Acupuncture, P.C. A judgment is granted against all of the defendants stating that they are not entitled to No-Fault benefits because of the failure of defendant Hilda Miranda to attend IMES.

Hilda Miranda was allegedly involved in an automobile accident on December 8, 2008, and asserted a claim to plaintiff American Transit Insurance Company. Plaintiff sought services from the defendants and assigned her No-fault benefits to them. The plaintiff insurance company scheduled two IMES with Ms. Miranda. She defaulted in appearing at both and, therefore, plaintiff denied all of the defendants’ claims. (Copies of the scheduling letters and denial of benefits are contained in Exhibit 3 of the Order to Show Cause.

The defendants, through the affirmation of their attorney, have sought to defeat plaintiff’s arguments on a number of spurious grounds, including that this motion is premature as it deprives defendants of the ability to gather information to defeat this motion, that plaintiff failed to prove that it sent letters to Miranda and that defendant Miranda failed to appear at the two scheduled IMES, and that the plaintiff disclaimed too late.

To defeat a motion for summary judgment, defendant must come forward with legally admissible evidence (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Mehlman v Montifiore, 98 Ad2d 107, 946 NYS2d 27 [1st Dept 2012]).

Defendants produced no legal evidence challenging plaintiff’s evidence. Defendants’ attorney, who had no first-hand knowledge of anything merely attempted to unsuccessfully poke holes in plaintiff’s proof. In order to obtain depositions to obtain information to defeat summary judgment, they must set forth specifically the information they seek, not merely that they need further discovery without asserting anything more.

A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence.

(Bailey v New York City Transit Authority, 270 AD2d 156, 157, 704 NYS2d 502 [1st Dept 2000]). [*3]

As to the letters that were challenged as lacking proof that they existed and were mailed, copies of those letters were annexed as exhibits to plaintiff’s moving papers and the manager of plaintiff’s mail room testified as to the procedure for mailing letters and packages. Defendant also asserted a number of decisions holding that a late declining of coverage will not uphold such a rejection. However, this is not the law in the First Department where, as here, the assignor has failed to appear at designated IMES, a condition precedent to the formation of the policy (Unitron Advantage Ins. Co. v Bayshore Physical, 82 AD3d 559, 918 NYS2d 473 [1st Dept 2011]). Such a void contract cannot be assigned, even if the insurer fails to reject a claim at a later time than the statute prescribed 30-day period (Central General Hospital v Chubb, 90 NY2d 195, 659 NYS 2d 246 [1997]). The principles of Unitron and Chubb continue to be followed in recent cases in the First Department, See, eg., Praetorian Ins. Co. v Johnson, 2012 WL2143766 [Sup Ct NY County 2013]).

Accordingly, summary judgment is awarded against the answering defendants and default judgments are awarded against the non-appearing defendants.

Neither defendant Miranda nor any of her assignees may recover from the insurer American Transit Insurance Company for the accident that occurred on December 8, 2008.

Settle Declaratory Judgment awarded against the defaulting and appearing defendants.

Dated: December 12, 2013Enter:

_______________________

Louis B. York, J.S.C.

Check one:FINAL DISPOSITIONNON-FINAL DISPOSITION

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 9, 2013

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Mitchell L. Kaufman of counsel), for appellant. The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for respondent.

{**42 Misc 3d at 67} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, with $30 costs, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment. After judgment was entered awarding plaintiff the principal sum of $5,206.18, defendant appealed from the order. The notice of appeal from the order is deemed to be a notice of appeal from the judgment (see CPLR 5512 [a]).

Since defendant specifically declines, for the purposes of this appeal, to contest the Civil Court’s finding that plaintiff established its prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

The Civil Court determined that defendant had failed to raise a triable issue of fact based solely upon its finding that defendant had failed to establish that it had issued an NF-10 denial of claim form in duplicate. Insurance Department Regulations (11 NYCRR) § 65-3.8 (c) (1) requires that “[i]f the insurer denies a {**42 Misc 3d at 68}claim in whole or in part involving elements of basic economic loss . . . the insurer shall notify the applicant or the authorized representative on the prescribed denial of claim form, in duplicate.” The regulation further provides that, where a denial involves a portion of a health provider’s bill, the insurer may alternatively make such a denial on a form or letter approved by the Department of Insurance, which is also to be issued in duplicate (id.). This requirement is presumably met by enclosing two copies of the denial in the same envelope. While defendant alleged that it had mailed a denial of claim form which denied the claim at issue based upon a lack of medical necessity, it did not allege that it had enclosed two copies of that denial in the same envelope. The Civil Court therefore found, in effect, that defendant’s defense of lack of medical necessity was precluded because it was not preserved in proper duplicate copies of the denial of claim form submitted to plaintiff.

In Excel Imaging, P.C. v MVAIC (27 Misc 3d 141[A], 2010 NY Slip Op 50998[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), this court held that the defendant’s failure to prove that it had issued the denial in duplicate, an issue that had been raised by the plaintiff in opposition to the defendant’s motion for summary judgment, required the denial of the motion. This court relied upon the language in New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co. (32 AD3d 458, 460 [2006]), which was also an action by a provider to recover assigned first-party no-fault benefits. In Rusk, the defendants had partially paid and partially denied the plaintiff’s claim. The denial was timely, but, instead of using the prescribed denial of claim form (the NF-10 form), the defendants had used a letter to deny the claim. The Appellate Division, Second Department, noted that the defendants were permitted to use a letter in such circumstances (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c] [1]), but found that the defendants were nonetheless precluded from raising their asserted defenses, stating that the “defendants failed to establish that the letter had been issued in duplicate and approved by the Department of Insurance” (Rusk, 32 AD3d at 460).

On this appeal, plaintiff does not claim that the information contained in the prescribed denial of claim form was insufficient, conclusory or vague, nor does it contend that it was in any way deprived of prompt, specific notice as to the reasons for the denial. It is noted that, subsequent to Rusk, the Appellate Division has found that other errors in denials should not be{**42 Misc 3d at 69} considered fatal when such errors do not pose the possibility of any prejudice to the claimant (see e.g. NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2011] [finding that a denial was not “rendered a nullity” by possible errors when such errors “were not significant by themselves, and did not pose any possibility of confusion or prejudice to the (plaintiff) under the circumstances”]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1169 [2010] [“minor factual discrepancy” did not invalidate a denial which “was not conclusory or vague, and did not otherwise involve a defense which had no merit as a matter of law”]). Upon reviewing the language in Rusk, we note that the Appellate Division did not base its decision therein solely on the defendants’ failure to serve the denial in duplicate. Rather, the Court noted both that the defendants had failed to use the prescribed form for the denial without obtaining approval from the Department of Insurance for the letter they had used and that they had not issued the letter in duplicate. In Excel, this court, in effect, took the position that either one of the aforementioned grounds, standing alone, would constitute a fatal defect rendering the denial of claim a nullity. However, in light of the Appellate Division cases decided after Rusk, we are no longer of the opinion that the failure to send a denial in duplicate should, on its own, be considered a fatal error that would prevent a defendant from being able to raise any otherwise meritorious, but precludable, defenses.

This is especially true as we see no benefit that a claimant would obtain by receiving two copies of the same prescribed denial of claim form in the same mailing and, thus, we do not see any prejudice to a claimant if it does not receive such a duplicate copy (see Prime Psychological Servs., P.C. v American Tr. Ins. Co., 20 Misc 3d 844, 850 [Civ Ct, Richmond County 2008] [discussing the requirement of duplicate denials and stating that “since the regulations set forth that both the original (NF-10) form and its duplicate shall be served on the medical provider, the service of the duplicate (NF-10) is basically redundant”]; see also NYU-Hospital for Joint Diseases, 84 AD3d at 1191). To the extent that Excel Imaging, P.C. (27 Misc 3d 141[A], 2010 NY Slip Op 50998[U]) holds otherwise, it should no longer be followed.

As we find that defendant’s lack of medical necessity defense is not precluded, we turn to the merits of this defense. Defendant raised a triable issue of fact in opposition to plaintiff’s motion{**42 Misc 3d at 70} for summary judgment since the affidavits submitted by defendant established that it had timely issued the subject denial of claim form (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 Dept, 2d & 11th Jud Dists 2007]), and the sworn peer review report submitted by defendant set forth a factual basis and medical rationale for the determination that there was a lack of medical necessity for the services provided (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston and Rios, JJ., concur.

[*1]

Supreme Court, New York County, October 8, 2013

APPEARANCES OF COUNSEL

Law Offices of James F. Sullivan, P.C., New York City (Giovanna Tuttolomondo of counsel), for plaintiff.

Law Offices of Robert E. Dash, P.C., Melville (Melissa R. Abraham-Lofurno of counsel), for Stand-Up MRI of the Bronx, P.C., defendant.

I. Background

Plaintiff moves for a default judgment against all defendants except Five Boro Psychological and Licensed Master Social Work{**45 Misc 3d at 173} Services, PLLC, Lincoln Medical and Mental Health Center, New York City Health and Hospitals Corporation, Stand-Up MRI of the Bronx, P.C., and Transcare Ambulance Services. (CPLR 3215.) Plaintiff moves for summary judgment against Stand-Up MRI. (CPLR 3212 [b].) On each ground, against both Stand-Up MRI and the remaining nine defendants, plaintiff’s motion seeks a judgment declaring that plaintiff owes no duty to compensate them pursuant to Insurance Law § 5103 for expenses incurred from a collision November 15, 2009, involving defendant Curry and a motor [*2]vehicle for which plaintiff issued an insurance policy. (CPLR 3001, 3212 [b]; 3215 [e].) For the reasons explained below, the court denies all the relief sought by plaintiff’s motion.

Plaintiff bases both prongs of its motion on Curry’s nonappearance for an examination under oath (EUO), to which plaintiff is entitled under the policy. (See 11 NYCRR 65-1.1 [d].) The policy’s mandatory personal injury protection provisions condition the insurer’s payment of a claim on “full compliance with the terms of this coverage.” (Id.) Upon the insurer’s request, “the eligible injured person or that person’s assignee or representative shall . . . as may reasonably be required submit to examinations under oath . . . .” (Id.)

II. Plaintiff Scheduled the EUO at Reasonably Convenient Times

[1] 11 NYCRR 65-3.5 (e) requires that an EUO be “held at a place and time reasonably convenient to the applicant” for insurance coverage. Plaintiff scheduled Curry’s EUO at two different times on different days of the week, both during business hours. Although business hours may be inconvenient for applicants who work during those hours, section 65-3.5 (e) also required plaintiff to notify Curry, as it did, that she would be reimbursed for any earnings lost by complying with the EUO request. Plaintiff notified her further that, if she advised plaintiff that the scheduled time was in fact inconvenient, plaintiff would reschedule the EUO. In light of these available accommodations, and absent any notice from Curry that the scheduled time was inconvenient, the scheduling during business hours was reasonable.

III. The Missing Evidence

[2] Yet 11 NYCRR 65-3.5 (e) requires further that plaintiff’s request for the EUO, to establish Curry’s or her assignee’s{**45 Misc 3d at 174} claim, “must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination.” Nowhere do plaintiff’s admissible documents or its witnesses, including the claims representative assigned to defendants’ claims for coverage and a supervisor of plaintiff’s legal department, responsible for EUO requests, indicate any justification, need, or explanation for Curry’s EUO. The director of plaintiff’s special investigations unit (SIU) attests simply that it “was requested to conduct an investigation” of the motor vehicle collision in which Curry was involved. (Aff in support of Giovanna Tuttolomondo, exhibit J, ¶ 6.) “As part of SIU’s investigation,” an SIU investigator “attempted to examine the claimant, CHRISTINA CURRY, under oath.” (Id.)

Moreover, even though only four months elapsed between when Curry provided her address on her application for insurance coverage and plaintiff mailed its EUO requests to that address, no witness attests that Curry did not notify plaintiff of an address change in the interim. Nor does plaintiff present any evidence that the applicant was notified of any obligation to inform the insurer of her change in address, particularly when she has assigned her rights to insurance benefits to her medical care providers and retains no more interest in obtaining benefits paid to her. This incomplete record leaves a question whether plaintiff mailed its EUO requests to Curry’s current address and whether she ever received them.

More importantly, no witness attests to Curry’s nonappearance at either of the scheduled EUOs. The director of plaintiff’s SIU just lays the foundation for the admissibility of business records that he claims show her nonappearances. While these records may be admissible, plaintiff does not present them. The SIU director’s recitation of their contents is hearsay. (E.g. People v Joseph, 86 NY2d 565, 570 [1995]; Lapin v Atlantic Realty Apts. Co., LLC, 48 AD3d 337, 338 [1st Dept 2008]; Kane v Triborough Bridge & Tunnel Auth., 8 AD3d 239, 241 [2d Dept 2004]; Wagman v Bradshaw, 292 AD2d 84, 87-88 [2d Dept 2002]; see Giordano v Berisha, 45 AD3d 416, 417 [1st Dept 2007]; Washington v Montefiore Med. Ctr., 9 AD3d 271, 272 [1st Dept 2004]; Marina Towers Assoc. v National States Elec. Corp., 203 AD2d 49, 50 [1st Dept 1994].)

IV. Conclusion

The absence of justification for the EUO as required by 11 NYCRR 65-3.5 (e) and of admissible evidence that the eligible injured person Curry actually failed to appear for the EUOs{**45 Misc 3d at 175} requested by plaintiff (see 11 NYCRR 65-1.1 [d]), precludes a summary declaratory judgment to plaintiff at this stage. (Ahead Realty LLC v India House, Inc., 92 AD3d 424, 425 [1st Dept [*3]2012]; Thome v Alexander & Louisa Calder Found., 70 AD3d 88, 100-101 [1st Dept 2009]; Long Is. Light. Co. v Allianz Underwriters Ins. Co., 35 AD3d 253, 254 [1st Dept 2006]; see United States Fire Ins. Co. v American Home Assur. Co., 19 AD3d 191, 192 [1st Dept 2005]; 319 McKibben St. Corp. v General Star Natl. Ins. Co., 245 AD2d 26, 29-30 [1st Dept 1997].) Absent a showing of plaintiff’s compliance with the governing regulation (11 NYCRR 65-3.5 [e]), and Curry’s noncompliance with the regulations and policy (11 NYCRR. 65-1.1 [d]; 65-3.5 [e]), plaintiff has failed to present facts establishing its prima facie claim and thus a basis for summary judgment as sought against Stand-Up MRI (CPLR 3212 [b]; JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384 [2005]; Chubb Natl. Ins. Co. v Platinum Customcraft Corp., 38 AD3d 244, 245 [1st Dept 2007]; Atlantic Mut. Ins. Co. v Joyce Intl., Inc., 31 AD3d 352 [1st Dept 2006]), or a default judgment as sought against the nine other defendants. (CPLR 3215 [f]; Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203 [2013]; Martinez v Reiner, 104 AD3d 477, 478 [1st Dept 2013]; Utak v Commerce Bank Inc., 88 AD3d 522, 523 [1st Dept 2011]; Mejia-Ortiz v Inoa, 71 AD3d 517 [1st Dept 2010].)

Consequently, the court denies plaintiff’s motion for a default declaratory judgment and for a summary declaratory judgment. (CPLR 3001, 3212 [b]; 3215 [f].) This decision constitutes the court’s order.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 8, 2013

APPEARANCES OF COUNSEL

Moshe D. Fuld, P.C., Brooklyn (David Karp and Cheryl Scher of counsel), for appellant. Law Offices of Teresa M. Spina, Woodbury (Lawrence J. Chanice of counsel), for respondent.

{**42 Misc 3d at 2} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms in question and the fact and the amount of the loss sustained is granted.{**42 Misc 3d at 3}

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained. Defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. In an order entered August 17, 2011, the Civil Court found that defendant had established, for all purposes in the action, that defendant had issued timely and proper denials, and limited the trial to plaintiff’s “prima facie case” and the issue of medical necessity. Plaintiff appeals, as limited by the brief, from so much of the order as denied the branch of its motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained.

As plaintiff argues, it proved the submission of the relevant claim forms to defendant by annexing the denials, which admitted the receipt of those claim forms (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Moreover, contrary to defendant’s argument on appeal, plaintiff established the fact and the amount of the loss sustained by demonstrating that its claim forms were admissible, pursuant to CPLR 4518 (a), as proof of the acts, transactions, occurrences [*2]and/or events recorded therein, and defendant did not rebut that showing. Thus, in the particular circumstances of this case, including the fact that the Civil Court did make a CPLR 3212 (g) finding as to the timely mailing of the denials and did limit the issues for trial, we find that it is appropriate to make a finding, pursuant to CPLR 3212 (g), that plaintiff established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained, and to therefore further limit the trial to the issue of medical necessity only.

Accordingly, the order, insofar as appealed from, is reversed and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained is granted.{**42 Misc 3d at 4}

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

Supreme Court, New York County

109003/11

Plaintiff:

Law office of James F. Sullivan

52 Duane Street, 7th Floor

New York, New York 10007

Defendant:

Melanie B. Nolan

80 Marcus Drive

Melville, New York 11747

Jazmine L. Rodriguez – pro se

351 Chester Street, Apt. 2F

Brooklyn, New York 11212

The Rybak Law, PLLC – for Deng Acupuncture, Compas Medical, New Way Medical,

and T & J Chiropractic

1810 Voorhies Avenue, 3rd Floor

Brooklyn, New York 11235

Doris Ling-Cohan, J.

This is an action for declaratory judgment arising out of an alleged motor vehicle accident. On January 12, 2011, defendant Jazmine L. Rodriguez (Rodriguez) was allegedly injured in the accident involving a vehicle insured by plaintiff American Transit Insurance Co. Defendant Rodriguez sought medical treatment from defendants The Brookdale Hospital Medical Center, Charles Deng Acupuncture, P.C. (Deng Acupuncture), Compas Medical, P.C. (Compas Medical), Metropolitan Diagnostic Medical Care, P.C., New Way Medical Supply, Corp. (New Way Medical), Seacoast Medical, P.C., and T & J Chiropractic, P.C. (T & J Chiropractic) (collectively the “Medical Provider Defendants”). Thereafter, defendant Rodriguez allegedly assigned her No-Fault rights to the Medical Provider Defendants. According to plaintiff, defendant Rodriguez breached and failed to comply with policy requirements set forth in the insurance policy, in that defendant Rodriguez failed to appear for an examination under oath, and, thus, plaintiff is not obligated to afford coverage.

Plaintiff now moves for a default judgment, pursuant to CPLR 3215, against defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C., and for summary judgment, pursuant to CPLR 3212, against defendants Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic. Such defendants jointly oppose plaintiff’s motion for summary judgment.

DISCUSSION

Default Judgment

CPLR 3215 provides that “[w]hen a defendant has failed to appear, . . . the plaintiff may seek a default judgment against him. . . . The judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305.” A party moving to prevent a default judgment from being entered must demonstrate a reasonable excuse for the default and a meritorious defense to the action. CPLR C3215:24; Wehringer v Brannigan, 232 AD2d 206, 206 (1st Dep’t 1996). [*2]

Here, plaintiff’s motion for a default judgment is granted as to defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C., as such defendants, to date, have failed to answer plaintiff’s complaint or appear in this action. Additionally, such defendants have not submitted any opposition to plaintiff’s motion. Defendants Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic take no position on this portion of plaintiff’s motion.

Summary Judgment

The Court of Appeals has stated, “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985) (citations omitted). The movant must establish prima facie entitlement to summary judgment by tender of evidentiary proof in admissible form. See Friends of Animals, Inc. v Associated Fur Mfrs.,Inc., 46 NY2d 1065, 1067-1068 (1979); Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. Zuckerman v City of New York, 49 NY2d 557, 560 (1980).

Under the above standard, plaintiff’s motion for summary judgment is denied. In support of its motion, plaintiff proffers the affirmation of its attorney, Kaitlin Williams, which states alleged terms of the insurance policy requiring the eligible injured person to submit to examinations under oath at the reasonable request of the insurance company. However, such policy was not annexed to the affirmation, or provided in support of plaintiff’s motion. While plaintiff’s attorney’s affirmation conclusorily states certain condition precedents required by the insurance policy, which were allegedly breached by defendant Rodriguez, such affirmation does not satisfy the requirement of tender of evidentiary proof in admissible form. See Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d at 1067. It is well settled that a “bare affirmation of . . . [an] attorney who demonstrated no personal knowledge . . . is without evidentiary value and thus unavailing.” Zuckerman v City of New York, 49 NY2d 557, 563 (1980). Furthermore, an affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. See Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 (1st Dep’t 1981), aff’d 54 NY2d 715 (1981). As such, plaintiff has failed to establish prima facie entitlement to summary judgment as a matter of law. Moreover, the affidavits with regards to mailing and service, attached to petitioner’s motion, do not establish, as a matter of law, the terms of the insurance policy, or that defendant Rodriguez breached such terms. Thus, plaintiff’s motion for summary judgment is denied, without prejudice to move for summary judgment within 60 days of the filing of the note of issue, upon completion of discovery.

Accordingly, it is

ORDERED that the portion of plaintiff’s motion seeking a default judgment is granted, as against defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C.; plaintiff shall settle order/judgment upon notice, in accordance with 22 NYCRR 202.48, returnable to room 119A; and it is further [*3]

ORDERED that the portion of plaintiff’s motion for summary judgment is denied, without prejudice to move after the completion of disclosure in accordance with this decision/order; and it is further

ORDERED that, within thirty days of entry, provider defendants shall serve a copy of this order upon all parties, together with notice of entry; and it is further

ORDERED that documentary discovery shall be exchanged and completed within 30 days; and it is further

ORDERED that depositions of the parties to commence on or before November 25, 2013, and completed on or before December 31, 2013; and it is further

ORDERED that the parties shall appear for a compliance conference on Thursday, January 9, 2014 at 10:00 A.M., in Room 428, 60 Centre Street, New York, NY ^[FN1]

This constitutes the Decision and Order of the Court.

Dated:

DORIS LING-COHAN, J.S.C.

Check one:[ ] FINAL DISPOSITION[ X ] NON-FINAL DISPOSITION

Check if Appropriate: [ ] DO NOT POST C:HTFormatf5163030.txt

Footnotes

Footnote 1: The October 17, 2013 conference is adjourned to January 9, 2014 at 10:00 A.M.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, August 16, 2013

APPEARANCES OF COUNSEL

Law Offices of Teresa M. Spina, Woodbury (John Dupuy of counsel), for appellant. Law Office of Ilona Finkelshteyn, Brooklyn (Jonathan R. Vitarelli of counsel), for respondent.

{**41 Misc 3d at 20} OPINION OF THE COURT

Memorandum.

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 supplies furnished on December 16, 2008 is granted; as so modified, the order, insofar as appealed from, is affirmed, with $25 costs to appellant; and it is further, ordered that on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the Office of the Clerk of this court and serving a copy on the others on or before October 4, 2013; and it is further, ordered that the clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant.

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 and stated that the only issue for trial was the medical necessity of the supplies at issue (see CPLR 3212 [g]).

{**41 Misc 3d at 21}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 a claim denial that was 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 the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover{**41 Misc 3d at 22} upon a claim for supplies furnished on October 23, 2008, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the doctor’s determinations that there was a lack of medical necessity for these supplies. In opposition to defendant’s cross motion, plaintiff submitted an affirmation by a doctor which was sufficient to raise a triable issue of fact as to whether these supplies were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, this branch of defendant’s cross motion was properly denied.

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for supplies furnished to plaintiff’s assignor on December 16, 2008, defendant submitted a peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for these supplies, on the ground, among others, that these supplies were superfluous, given that the assignor had already been involved in a treatment plan which included physical therapy and rehabilitation, which treatment plan, the peer reviewer stated, was sufficient to restore the assignor to the assignor’s pre-accident comfort level. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone rebut, this determination (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). 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 on a claim for supplies furnished on December 16, 2008 should have been granted (see Park Slope Med. v Praetorian Ins. Co., 39 Misc 3d 141[A], 2013 NY Slip Op 50761[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

Where a respondent submits an appellate brief, it shall include, pursuant to CPLR 5528, respondent’s appellate argument (see Rules of Practice for App Term, 2d Dept, 2d, 11th & 13th Jud Dists [22 NYCRR] § 731.2 [a]). Sanctions and costs may be imposed against an attorney or party to the litigation, or both, for engaging in frivolous conduct (Rules of Chief Admin [22 [*2]NYCRR] § 130-1.1). We note generally that rule 3.3 (f) (2) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that “[i]n appearing as a lawyer before a tribunal, a lawyer shall not . . . engage in undignified or discourteous conduct” (see also Galasso, Langione & Botter, LLP v Galasso, 89 AD3d 897, 899 [2011]). We further note that rule 5.1 of the Rules of Professional Conduct (22 NYCRR 1200.0) governs the responsibilities of law firms, partners, managers and supervisory lawyers. In the instant case, the brief submitted on respondent’s behalf contained, among other things, pages denominated “Table of Authorities” and “Summary of the Argument” that merely state that these pages were “left blank intentionally.” The “Question Presented” stated only “WHAT’S A BOY TO DO?” The remainder of the respondent’s brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed. Based upon the above, and other statements in the respondent’s brief, we order Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, to show cause why an order should or should not be made and entered imposing sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq.

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 supplies furnished on December 16, 2008 is granted and, upon the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, are directed to show cause why an order should or should not be made and entered imposing such sanctions{**41 Misc 3d at 23} and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the Office of the Clerk of this court and serving a copy on the others on or before October 4, 2013.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 12, 2013

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Law Office of Teresa M. Spina, Woodbury (Peter J. Molesso of counsel), for respondent.

{**43 Misc 3d at 28} OPINION OF THE COURT

Memorandum.

Ordered that, on the court’s own motion, the notice of appeal from the decision dated December 10, 2010 is deemed a premature notice of appeal from the judgment entered February 16, 2011 (see CPLR 5520 [c]); and it is further, ordered that the judgment is reversed, with $30 costs, the complaint is reinstated, and the matter is remitted to the Civil Court for a new trial.

In a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motions to admit into evidence, among other things, plaintiff’s assignment of benefits form, document delivery receipt, and claim form. Defendant presented no witnesses. Plaintiff appeals from a written decision after trial in which the court found for defendant. A judgment was subsequently entered, from which we deem the appeal to have been taken (CPLR 5520 [c]). On appeal, plaintiff contends, among other things, that it had laid a proper foundation for the admission into evidence of its assignment of benefits form, [*2]delivery receipt and claim form. We agree.

At the outset, we note that plaintiff was not required to lay a CPLR 4518 (a) foundation for the assignment of benefits form. An assignment of benefits is not hearsay; like a contract, it has independent legal significance and need only be authenticated to be admissible (see Kepner-Tregoe, Inc. v Leadership Software, Inc., 12 F3d 527, 540 [5th Cir 1994]; see also Beal-Medea Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d{**43 Misc 3d at 29} 135[A], 2012 NY Slip Op 51347[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). However, plaintiff was attempting to use the delivery receipt and claim form to prove the transactions recorded therein, and so was required to lay a CPLR 4518 (a) foundation for those records.

“The essence of the business records exception to the hearsay rule is that records systematically made for the conduct of a business as a business are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct of the enterprise” (People v Kennedy, 68 NY2d 569, 579 [1986]).

If a record is made in the regular course of business, it is the regular course of business to make the record, and the record is made at or about the time of the event being recorded, the record can be admitted into evidence pursuant to the CPLR 4518 (a) business records hearsay exception.

A review of the evidence adduced at trial shows that plaintiff’s witness was employed by plaintiff prior to, during, and after the time that plaintiff had provided the supplies to its assignor. The witness testified he and another person who was no longer employed by plaintiff had generated all of plaintiff’s claim forms, and that his father, who was the owner of plaintiff, had generated the delivery receipts. The witness also testified, albeit inartfully, that he was familiar with plaintiff’s office routine and that plaintiff’s delivery receipts and claim forms were routinely and contemporaneously made in the course of plaintiff’s business, and that it is plaintiff’s regular business practice to make such records. The Civil Court sustained defendant’s objection to the admission of the foregoing documents into evidence on the ground that the witness was not a proper person to lay a foundation for their admission.

It is not necessary to call the person who actually made a record in order to establish a proper foundation for its admission into evidence pursuant to the business record exception of CPLR 4518 (a). As plaintiff’s witness was an employee who was familiar with plaintiff’s office routine, it was proper for him to testify that the aforementioned records had been contemporaneously and routinely made in the course of plaintiff’s business and that it is plaintiff’s regular business practice to make such records (see People v Kennedy, 68 NY2d at 579). In addition, CPLR 4518 (a) provides that a witness’s lack of personal knowledge affects{**43 Misc 3d at 30} the weight of the record, not the admissibility of the record. Inasmuch as the witness had satisfied the foundational requirements of CPLR 4518 (a), plaintiff’s exhibits 1 and 2 should have been admitted into evidence.

Accordingly, the judgment is reversed, the complaint is reinstated, and the matter is remitted to the Civil Court for a new trial.

Pesce, P.J., Weston and Rios, JJ., concur.

Supreme Court, New York County

150235/09

Plaintiff:

Galvano & Xanthakis, PC

150 Broadway, Ste 2100

New York, New York 10038

Defendants:

Brand Glick & Brand, PC

600 Old Country Rd, Ste 440

Garden City, New York 11530

Doris Ling-Cohan, J.

The following papers, numbered 1 – 7 were considered on this motion and cross-motion for summary judgment:

PAPERSNUMBERED

Notice of Motion/Order to Show Cause, — Affidavits — Exhibits1, 2, 3,

Answering Affidavits — Exhibits ________________________________

Replying Affidavits ____________________________________________7

Cross-Motion:[ ] Yes[ X ] No4, 5, 6

Upon the foregoing papers, it is ordered that this motion and cross-motion are decided as indicated below.

BACKGROUND

Plaintiff Calvin Alford commenced this action against defendant Fiduciary Insurance Company of America (Fiduciary Ins.) seeking no-fault benefits for injuries he sustained in an automobile accident. The facts of this action are uncontested. Plaintiff, a resident of the State of New York, did not own a car, nor did he reside with anyone who owned a car. In February 2009, plaintiff, a pedestrian, was struck, while crossing the street, by a vehicle insured by defendant Fiduciary Ins. Plaintiff was taken from the scene, to the hospital, by ambulance. Subsequently, plaintiff, and his counsel, attempted to obtain the identity of the vehicle that struck him, but was unable to ascertain such information until June 1, 2009. Nonetheless, in April 2009, plaintiff filed a timely application for benefits with the Motor Vehicle Accident Indemnification Corporation (MVAIC), and continued his efforts to discover the identity of the vehicle that struck him. On June 1, 2009, MVAIC responded to plaintiff’s application for no-fault benefits, stating that the vehicle that struck plaintiff was insured by defendant Fiduciary Ins. Through counsel, [*2]plaintiff immediately contacted defendant Fiduciary Ins., by telephone, to file a no-fault application, claim number 20082280, which was denied on June 3, 2009 pursuant to 11 NYCRR 65-1.1.

Such denial stated that plaintiff did not provide written notice of the claim, and that such claim was untimely. The denial further states that the “late notice denial will be reconsidered if the injured party submits written proof that provides clear and reasonable justification for the failure to comply with the notice requirement”. Notice of Motion, Exh. K, Denial of Claim Form, p. 1. Plaintiff unsuccessfully sought a reconsideration of the denial by telephone on several occasions. On July 17, 2009, plaintiff submitted a written request for reconsideration detailing the inability to ascertain the identity of the offending vehicle until June 1, 2009, when plaintiff received a response from MVAIC. Thereafter, plaintiff received no response to his written request for reconsideration, and commenced this action on December 10, 2009.

Plaintiff now moves for summary judgment against defendant Fiduciary Ins., declaring that defendant Fiduciary Ins. must provide no-fault benefits to plaintiff. Defendant Fiduciary Ins. cross-moves for summary judgment dismissing the summons and complaint.

DISCUSSION

The standards of summary judgment are well settled. Summary judgment should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case”. Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure…to do [so]”. Zuckerman v City of New York, 49 NY2d 557, 560 (1980).

Here, there is no dispute as to the facts. Plaintiff argues that after numerous attempts, made by himself and his counsel, he was unable to obtain a copy of the police report, or any other document, to ascertain the identity of the vehicle that struck him. In support, plaintiff proffers, inter alia, his affidavit detailing his attempt to obtain the police report, as well as documents requesting such police report.

Defendant Fiduciary Ins., in arguing that the summons and complaint must be dismissed, contends that timely notice of claim was not provided, that written notice was not provided until July 17, 2009, and that it is not reasonable for plaintiff to wait over two months to file an application with MVAIC merely because plaintiff was attempting to obtain a copy of the police report. Defendant Fiduciary Ins. also argues that plaintiff lacks standing to bring the instant action, as plaintiff has assigned his rights for recovery of medical expenses to his medical provider and that plaintiff has not provided proof of payment for the medical bills to the medical provider. [*3]

“It is well settled that delay on the part of an injured party to give notice may be excused, upon a showing of diligence, where he had difficulty ascertaining the identity of the insured or insurer”. Berman v County-Wide Ins. Co., 819 NYS2d 208 (Civil Ct., Queens Cty. 2006). See also Hartford Accident & Indemnity Co. v CNA Ins. Companies, 99 AD2d 310, 314 (1st Dep’t 1984). Here, plaintiff has shown entitlement to summary judgment as a matter of law. While defendant Fiduciary Ins. is correct in asserting that plaintiff’s notice of claim was technically late, 11 NYCRR 65-3.5(1) specifically states that, for the standards of review where applicants have provided late notice, “such standards shall include…appropriate consideration for pedestrians and non-related occupants of motor vehicles who may have difficulty ascertaining the identity of the insurer.” Plaintiff, a pedestrian hit by a vehicle while crossing the street, was rushed from the scene by ambulance. Plaintiff has documented his diligent attempts, and those of his counsel, in obtaining the identity of the vehicle that struck him. The Appellate Division, First Department, has held that “notice by an injured claimant is not judged by the same standard as governs notice by the insured”. Id. Thus, plaintiff has established entitlement to summary judgment.

Defendant Fiduciary Ins. argues that plaintiff failed to provide written notice. However, defendant Fiduciary Ins.’s denial of plaintiff’s oral claim specifically stated that plaintiff’s late notice would be reconsidered upon submission of a written claim. It is undisputed that plaintiff submitted such written notice. Defendant Fiduciary Ins., nevertheless, failed to reconsider plaintiff’s claim. Thus, defendant’s argument that plaintiff failed to timely provide written notice is unpersuasive. Defendant Fiduciary Ins.’s remaining argument, based on standing, is similarly inapposite. Aside from defendant Fiduciary Ins.’s conclusory allegation that plaintiff assigned his rights for recovery of medical expenses to his medical provider, defendant Fiduciary Ins. has failed to provide any evidence of such alleged assignment. The Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat a motion for summary judgment. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978). Thus, defendant Fiduciary Ins.’s cross-motion for summary judgment must be dismissed.

Accordingly, it is

ORDERED that plaintiff’s motion for summary judgment against defendant Fiduciary Ins. is granted in its entirety, and the Clerk is directed to enter judgment accordingly in favor of plaintiff; and it is further

ORDERED, ADJUDGED and DECLARED that the defendant Fiduciary Ins. Must provide no-fault benefits, and provide coverage, to plaintiff with regards to the February 2009 automobile accident; and it is further

ORDERED that defendant Fiduciary Ins.’s cross-motion for summary judgment is denied; and it is further

ORDERED that the issue of the amount of no-fault benefits is respectfully referred to a Special Referee in accordance with CPLR §4317(b), to hear and determine; and it is further

ORDERED that within 45 days of entry of this order, plaintiff shall serve a copy of this order with notice of entry upon defendant Fiduciary Ins., as well the Clerk of the Judicial Support Office to arrange a calendar date for the reference to a Special Referee. [*4]

This is the decision and order of the court.

Dated:

DORIS LING-COHAN, J.S.C.

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