Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 27, 2005. The order denied plaintiff's motion for summary judgment.

Order reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees.

In opposition to plaintiff's motion for summary judgment seeking to recover assigned first-party no-fault benefits, defendant submitted a sworn statement by one of
its employees who asserted that defendant timely and properly denied the subject claims due to a lack of medical necessity based upon peer review reports. In the court below, plaintiff objected to such sworn statement in that it did not comply with CPLR 2309 (c). Since the affidavit proffered by defendant was not in admissible form (see CPLR 2309 [c]; Citibank [S.D.] N.A v Suen, 11 Misc 3d 126[A], 2005 NY Slip Op 52262[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]), defendant failed to introduce competent evidence [*2]establishing that its denial of claim forms were timely mailed. In light of the foregoing, defendant was precluded from raising a defense based upon lack of medical necessity (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]; Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50856[U] [App Term, 2d & 11th Jud Dists]).

Defendant's remaining contentions lack merit.

Accordingly, summary judgment is granted in favor of plaintiff and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., and Belen, J., concur.

Weston Patterson , J., concurs in a separate memorandum.

Weston Patterson, J., concurs in the following memorandum:

While I concur with the majority opinion, I write separately to emphasize defendant's failure to submit admissible proof sufficient to rebut plaintiff's prima facie showing. To demonstrate timely mailing, defendant attached the affidavit of its Senior Operations Staff Analyst, who set forth how the denial of claim forms were printed and mailed. Although the affidavit is copiously detailed, it is nonetheless defective, since it was notarized out of state and contained no certificate of conformity pursuant to CPLR 2309 (c). This Court has strictly required a certificate of conformity for affidavits notarized out of state in order for such affidavits to be admissible (see Citibank [S.D.] v Suen, 11 Misc 3d 126[A], 2005 NY Slip Op 52262[U] [App Term, 2d & 11th Jud Dists]). Thus, defendant's failure to submit the certificate ultimately precludes it from raising lack of medical necessity as a defense (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]; Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50856[U] [App Term, 2d & 11th Jud Dists]).

Finally, I would note that defendant's remaining arguments that plaintiff did not establish a prima face case because its affidavit was executed by a corporate officer who did not identify his corporate position and the corporate officer failed to establish that plaintiff's records were made in the regular course of business are raised for the first time on appeal. Consequently, they are not preserved for appellate review, and I decline to review them in the interest of justice. [*3]
Decision Date: November 17, 2006