Dan Med., P.C. v New York Cent. Mut. Ins. Co.

[*1] Dan Med., P.C. v New York Cent. Mut. Ins. Co. 2007 NY Slip Op 51981(U) [17 Misc 3d 130(A)] Decided on September 4, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 4, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-1173 Q C.

Dan Medical, P.C. a/a/o REGINALD BEAUBRUN, Respondent,

against

New York Central Mutual Insurance Co., Appellant.

Appeal, as limited by the brief, from so much of an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered April 14, 2006, as granted plaintiff's motion for summary judgment to the extent of awarding it partial summary judgment, deemed an appeal from a judgment entered May 30, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 14, 2006 order, awarded plaintiff the principal sum of $1,146.80.

Judgment affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff's motion for summary judgment upon the six claims it submitted to defendant was granted to the extent of awarding plaintiff summary judgment upon five of the claims which totaled $1,146.80. After defendant filed its notice of appeal, a judgment was entered upon these five claims. Pursuant to CPLR 5501 (c), we deem defendant's appeal to be from the judgment.

Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff's establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto. In opposition to plaintiff's motion for summary judgment, defendant submitted, inter alia, an accident analysis report accompanied by an affidavit of the technical consultant/accident reconstructionist who prepared the report in an attempt to demonstrate that there was an issue of fact as to whether the injuries plaintiff's [*2]assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since the affidavit proffered by defendant did not comply with CPLR 2309 (c), which fact was duly objected to by plaintiff in the court below, the affidavit was not in admissible form (see CPLR 2309 [c]; Bath Med. Supply, Inc. v Allstate Indem. Co., 13 Misc 3d 142[A], 2006 NY Slip Op 52273[U] [App Term, 2d & 11th Jud Dists]; see also Jenkins v Diamond, 308 AD2d 510 [2003], citing Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]). Consequently, defendant failed to introduce competent evidence establishing that it possessed a founded belief that the alleged injuries did not arise out of an insured incident (see Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists]; cf. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 131[A], 2006 NY Slip Op 51051[U] [App Term, 2d & 11th Jud Dists]).

Defendant's constitutional challenge to CPLR 2309 (c) is not reviewable as defendant failed to give the requisite statutory notice to the Attorney General (see Executive Law § 71; CPLR 1012; Estate of Marone v Chaves, 306 AD2d 372 [2003]; Matter of Lee P.S. v Lisa L., 301 AD2d 606 [2003]; Robert Fiance Hair Design Inst. v Concourse Props. Co., 130 AD2d 564 [1987]).

To the extent plaintiff requests that we search the record and award it summary judgment upon its remaining claim for $473.20, plaintiff's entitlement to summary judgment upon this claim is not before us since said claim is not brought up for review on defendant's appeal from the judgment, and plaintiff did not appeal from so much of
the order as denied its motion for summary judgment upon such claim (see CPLR 5501 [a] [1]).

In light of the foregoing, the judgment is affirmed.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007