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Lifex Medical Care, P.C. As Assignee of Priscilla Wells v. Safeco National Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th


June 28, 2011

LIFEX MEDICAL CARE, P.C. AS ASSIGNEE OF PRISCILLA WELLS,
RESPONDENT,
v.
SAFECO NATIONAL INSURANCE COMPANY,
APPELLANT.

Lifex Med. Care, P.C. v Safeco Natl. Ins. Co. 2011 NY Slip Op 51221(U)

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on June 28, 2011

JUDICIAL DISTRICTS PRESENT: STEINHARDT, J.P., GOLIA and RIOS, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 25, 2009, deemed from a judgment of the same court entered December 2, 2009 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the September 25, 2009 order granting plaintiff's motion for summary judgment and implicitly denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $4,665.13.

ORDERED that the judgment is reversed, without costs, so much of the order as granted 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of coverage due to fraudulent procurement of the insurance policy. The Civil Court granted plaintiff's motion and implicitly denied defendant's cross motion. A judgment was subsequently entered, from which we deem defendant's appeal to be taken (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

Plaintiff demonstrated that defendant had not paid plaintiff's claims. However, with respect to the claims seeking reimbursement in the amounts of $182.18, $892.72, $463.44, $202.80 and $270.40, plaintiff failed to show that the basis for defendant's denials of these claims was conclusory, vague or had no merit as a matter of law. As a result, plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law on these claims, and it is not necessary for this court to consider defendant's opposition papers with respect thereto (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). While plaintiff asserted that it had not received NF-10 forms denying claims in the amounts of $230.09 and $2,423.50, the affidavit of defendant's claims examiner, which established the timely mailing of these two 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]), was sufficient to demonstrate that plaintiff was not entitled to summary judgment on these two claims (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, plaintiff's motion for summary judgment should have been denied.

However, the Civil Court properly declined to grant defendant's cross motion for summary judgment dismissing the complaint, since defendant did not submit sufficient evidence in admissible form to establish its entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Plaintiff correctly argues, as it did in the Civil Court, that the transcript of plaintiff's assignor's testimony at her examination under oath was not competent evidence as the transcript was neither signed by the witness nor certified by the court reporter (see Krupp v Aetna Life & Cas. Co., 103 AD2d 252 [1984]; cf. Zalot v Zieba, 81 AD3d 935 [2011]). Furthermore, defendant proffered various documents which were supported by an affidavit that was notarized in the State of Indiana, but, as plaintiff properly noted in opposition to the cross motion, the affidavit was not accompanied by a certificate of conformity in accordance with CPLR 2309 (c) and Real Property Law § 299-a (1) (see Citibank, [S.D.] N.A. v Suen, 11 Misc 3d 126[A], 2005 NY Slip Op 52262[U] [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied. We leave undisturbed the Civil Court's implicit denial of defendant's cross motion for summary judgment dismissing the complaint.

Steinhardt, J.P., Golia and Rios, JJ., concur.

Decision Date: June 28, 2011

20110628

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