Opinion
2007-65 Q C.
Decided March 10, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 1, 2006, deemed from a judgment entered January 8, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 1, 2006 order which, inter alia, granted plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $1,149.20.
PRESENT: WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
Judgment reversed without costs, so much of the order entered December 1, 2006 as granted plaintiff's cross motion for summary judgment vacated and plaintiff's cross motion for summary judgment denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment and plaintiff cross-moved for summary judgment. The court granted plaintiff's cross motion, finding that the affidavit by defendant's no-fault specialist did not establish that defendant's denial of claim form was timely mailed because it was executed in Connecticut and defendant did not annex a certificate of conformity as required by CPLR 2309 (c). This appeal by defendant ensued in which defendant only seeks review of so much of the order as granted plaintiff's cross motion for summary judgment.
Inasmuch as defendant raises no issue on appeal with respect to plaintiff's establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.
Although the affidavit of defendant's no-fault specialist was notarized by a Connecticut notary public and was not accompanied by a certificate of conformity in accordance with CPLR 2309 (c) and Real Property Law § 299-a (1), the court should have disregarded such a defect in form since plaintiff did not object to the omission ( see Matter of MBNA Am. Bank v Stehly, ___ Misc 3d ___, 2008 NY Slip Op 28010 [App Term, 2d 11th Jud Dists 2008]). Moreover, plaintiff conceded that defendant's denial of claim form was timely.
Plaintiff asserts that it was entitled to summary judgment because the defense of lack of medical necessity was precluded as the denial of claim form, based upon an independent medical examination, was defective since it did not set forth the medical rationale for the denial. Such a claim lacks merit ( see New York Univ. Hosp. Rusk Inst. v Govt. Empl. Ins. Co. , 39 AD3d 832 ; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. , 39 AD3d 779 ; A.B. Med. Servs. v GEICO Cas. Ins. Co. , 39 AD3d 778). Consequently, since plaintiff conceded that the parties' conflicting affirmations regarding medical necessity raised an issue of fact, plaintiff's cross motion for summary judgment should have been denied.
In light of the foregoing, we do not pass upon defendant's remaining contention.
Weston Patterson, J.P., Golia and Rios, JJ., concur.