Defendant appeals, as limited by its brief, from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 20, 2010, which denied its motion for summary judgment dismissing the complaint.
Triangle R Inc. v New York Cent. Mut. Fire Ins. Co.
Decided on September 9, 2011
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ
Order (Raul Cruz, J.), entered October 20, 2010, insofar as appealed from, reversed, with $10 costs, defendant's motion for summary judgment granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
In this action by plaintiff to recover assigned first-party no-fault benefits, defendant's submissions sufficed to establish prima facie that the medical supplies provided by plaintiff to its assignor were not medically necessary (see Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52267[U] ; Innovative Chiropractic, P.C. v Travelers Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52447[U] ). In opposition, plaintiff failed to raise a triable issue of fact. The undated medical report relied upon by plaintiff was not properly sworn (see CPLR 2106, 2109), and should not have been considered (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 ). Moreover, even if considered, the report was insufficient to defeat summary judgment (id.).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 09, 2011
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