Opinion
570715/07.
Decided October 7, 2008.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered October 27, 2006, which denied its motion for summary judgment.
Order (Manuel J. Mendez, J.), entered October 27, 2006, reversed, with $10 costs, and plaintiff's motion for summary judgment in the principal sum of $1,928.66 granted. The Clerk is directed to enter judgment accordingly.
PRESENT: DAVIS, J.P., SCHOENFELD, HEITLER JJ.
In this action to recover first party no-fault benefits, plaintiff made a prima facie showing of entitlement to summary judgment by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue ( see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Mary Immaculate Hosp. v Allstate Ins. Co. , 5 AD3d 742 ). In opposition, defendant has failed to raise an issue of fact. The unsworn chiropractor's report submitted by defendant in support of its defense of lack of medical necessity was not in admissible form ( see CPLR 2106), a defect which requires its exclusion from consideration ( see Shinn v Catanzaro , 1 AD3d 195 , 197; Jeff Mollins, DC v Motor Veh. Acc. Indem. Corp. , 14 Misc 3d 133[A], 2007 NY Slip Op 50138[U][2007]). In any event, the chiropractor's report, which was based on a July 9, 2002 independent medical examination of plaintiff's assignor, only concluded that "further" acupuncture treatment was not necessary, and did not suffice to raise a factual issue as to the medical necessity of the acupuncture treatment at issue. Nor did defendant produce competent evidence in support of its defense of nonconformity with the applicable fee schedule (see Continental Med. P.C. v Travelers Indem. Co. , 11 Misc 3d 145 [A], 2006 NY Slip Op 50841[U] [2006]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur