Great Health Care Chiropractic, P.C. v Nationwide Ins.

[*1] Great Health Care Chiropractic, P.C. v Nationwide Ins. 2014 NY Slip Op 51812(U) Decided on December 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: :PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1330 K C

Great Health Care Chiropractic, P.C. as Assignee of ELIZABETH CLAUDE, Appellant,

against

Nationwide Ins., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 1, 2012. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order 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 denied its motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint. On appeal, plaintiff argues that defendant's cross motion should have been denied, and plaintiff's motion should have been granted, because defendant submitted an affidavit to the court that had been executed in Pennsylvania and which was not accompanied by a proper certificate of conformity, and because defendant had not tolled its time to pay or deny the claims at issue as its delay letters, attached as exhibit "D" to its cross motion, "failed to conform to the requirements of a proper EUO [examination under oath] request letter."

Contrary to plaintiff's contention, the affidavit submitted by defendant was accompanied by a proper certificate of conformity (see CPLR 2309 [c]). In any event, the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect (see Fredette v Town of Southampton, 95 AD3d 940 [2012]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Furthermore, while plaintiff correctly argues that the letters attached to defendant's cross motion as exhibit "D" "failed to conform to the requirements of a proper EUO request letter," and that these letters failed to toll defendant's time to pay or deny the claims at issue, plaintiff has not demonstrated on appeal that the Civil Court improperly held that defendant had timely denied the claims at issue. Indeed, the record reflects that defendant submitted EUO scheduling letters attached to its cross motion as exhibit "F," which appear to contain the information plaintiff found to be lacking in the letters attached as exhibit "D," and plaintiff has raised no issue with respect to the sufficiency of those letters.

In view of the foregoing, plaintiff has provided no basis upon which to reverse the order of the Civil Court. Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014