COMPLETE ORTHOPEDIC SUPPLIES INC v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (2009)

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated June 28, 2007, deemed from a judgment entered August 1, 2007 (see CPLR 5501[c] ).  The judgment, entered pursuant to the June 28, 2007 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $4,049.25.

Judgment reversed without costs, order dated June 28, 2007 vacated, plaintiff's motion for summary judgment denied and defendant's cross motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment.   Defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity.   The Civil Court granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.   The instant appeal by defendant ensued.   A judgment was subsequently entered (see CPLR 5501[c] ).

Since 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 Civil Court's implicit determination with respect thereto.

 The Civil Court held that defendant failed to establish that its denial of claim forms were timely mailed because the notary public's jurat, on the affidavits of mailing executed by defendant's claims support services supervisor and the president of the courier service utilized by defendant, did not indicate the year in which the affidavits were signed.   However, this technical defect is of the type which a court should disregard since it does not prejudice a substantial right of a party, particularly, where as here, plaintiff raised no objection thereto (see CPLR 2001;  Matter of Goffredo v. City of New York, 33 A.D.3d 346, 830 N.Y.S.2d 11 [2006];  Matter of Liberty Mut. Ins. Co. v. Bohl, 262 A.D.2d 645, 694 N.Y.S.2d 72 [1999];  Supreme Automotive Mfg. Corp. v. Continental Cas. Co., 97 A.D.2d 700, 468 N.Y.S.2d 125 [1983] ).   Accordingly, the affidavits submitted by defendant were sufficient to establish that its denial of claim forms, which denied plaintiff's claims on the ground of lack of medical necessity, were timely mailed in accordance with defendant's standard office practice and procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 729 N.Y.S.2d 776 [2001];  Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16, 847 N.Y.S.2d 322 [App. Term, 2d & 11th Jud. Dists. 2007] ).

 The papers submitted by defendant in support of its cross motion, including the affirmed peer review report, established prima facie that there was no medical necessity for the supplies provided by plaintiff, which proof was unrebutted.   As a result, defendant's cross motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v. American Tr. Ins. Co., 18 Misc.3d 128(A), 2007 N.Y. Slip Op. 52455(U), 2007 WL 4564121 [App. Term, 2d & 11th Jud. Dists. 2007];  A Khodadadi Radiology, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 16 Misc.3d 131(A), 2007 N.Y. Slip Op. 51342(U), 2007 WL 1989432 [App. Term, 2d & 11th Jud. Dists. 2007] ).

Plaintiff's remaining contentions either lack merit or are improperly raised for the first time on appeal.

Accordingly, the judgment is reversed, the order dated June 28, 2007 is vacated, plaintiff's motion for summary judgment is denied, and defendant's cross motion for summary judgment dismissing the complaint is granted.