Opinion
No. 2013–852 K C.
01-15-2015
HEALING ART ACUPUNCTURE, P.C. as Assignee of Tatiana Obaez, Appellant, v. AMICA MUTUAL INS. CO., Respondent.
Opinion
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c] ).
In support of its motion, defendant submitted an affidavit by its claims representative, which affidavit 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] ). Although the claims representative's affidavit, which was notarized outside the State of New York, failed to conform to the requirements set forth in CPLR 2309(c) and Real Property Law § 299–a regarding the submission of a certificate of conformity, the absence of a certificate of conformity is not a fatal defect (see Fuller v. Nesbitt, 116 AD3d 999 [2014] ; Fredette v. Town of Southampton, 95 AD3d 940 [2012] ; see also Gonzalez v. Perkan Concrete Corp., 110 AD3d 955 [2013] ; Smith v. Allstate Ins. Co., 38 AD3d 522 [2007] ; Active Chiropractic, P.C. v. Praetorian Ins. Co., 43 Misc.3d 134 [A], 2014 N.Y. Slip Op 50634[U] [App Term, 2d, 11th & 13th Jud Dists 2014] ), as the defect may be disregarded pursuant to CPLR 2001 where a substantial right of a party is not prejudiced (see Midfirst Bank v. Agho, 121 AD3d 343 [2014] ; Rivers v. Birnbaum, 102 AD3d 26 [2012] ). In the present case, plaintiff failed to make any showing of prejudice.
Defendant denied plaintiff's claims on the grounds that they exceeded the amount permitted by the workers' compensation fee schedule, and that defendant had fully paid for the billed-for services in accordance with the fee schedule for acupuncture services performed by chiropractors. Contrary to plaintiff's assertion, the affidavit executed by a fee schedule adjuster for defendant's vendor, Managed Care Network, established that defendant had properly used the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services at issue (see Great Wall Acupuncture, P.C. v. GEICO Ins. Co., 26 Misc.3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009] ). Plaintiff's papers failed to raise a triable issue of fact in opposition to defendant's motion. Consequently, the Civil Court properly granted defendant's motion and denied plaintiff's cross motion.
Accordingly, the judgment is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.