November 12, 2010
Axis Chiropractic, PLLC v Geico Gen. Ins. Co. (2010 NY Slip Op 51963(U))
https://www.beynensonlaw.com/case-law/axis-chiropractic-pllc-v-geico-gen-ins-co-2010-ny-slip-op51963u/
- Decided
- November 12, 2010
- Citation
- 2010 NY Slip Op 51963(U) · 29 Misc 3d 134(A)
- Posture
- Other motion
- Outcome
- Insurer prevailed
- Legal questions
- Claimant's prima facie case on motions (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Axis Chiropractic, PLLC v Geico Gen. Ins. Co. (2010 NY Slip Op 51963(U))
| Axis Chiropractic, PLLC v Geico Gen. Ins. Co. |
| 2010 NY Slip Op 51963(U) [29 Misc 3d 134(A)] |
| Decided on November 12, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-1735 K C.
against
Geico General Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 19, 2009. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to vacate the notice of trial, sua sponte compelled plaintiff to respond to defendant’s discovery demands, implicitly denied the branch of plaintiff’s cross motion seeking a protective order, and denied plaintiff’s motion for summary judgment.
ORDERED that, on the court’s own motion, the notice of appeal from so much of the
order as, sua sponte, compelled plaintiff to respond to defendant’s discovery demands is treated
as an application for leave to appeal from that portion of the order,
and leave to appeal from that portion of the order is granted (see CCA 1702 [c]);
and it is further,
ORDERED that the order, insofar as appealed from, is affirmed with $10 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant served an answer which was accompanied by discovery demands. Although plaintiff had not responded to said demands, it filed a notice of trial and a certificate of readiness. A month thereafter, defendant moved to vacate the notice of trial on the ground that the certificate of readiness contained erroneous statements that discovery had been completed. Plaintiff cross-moved for, among other things, a protective order, and subsequently moved for summary judgment. The Civil Court granted defendant’s motion and, sua sponte, compelled plaintiff to respond to defendant’s discovery demands, thereby implicitly denying the branch of plaintiff’s cross motion seeking a protective order. The court also denied plaintiff’s motion for summary judgment. The instant appeal by plaintiff ensued.
Defendant’s timely motion to vacate the notice of trial (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]) was properly granted inasmuch as the certificate of readiness contained erroneous statements that discovery had been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall [*2]Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).
CPLR 3103 (a) empowers a court to issue a protective order “at any time.” The failure of a party to promptly move for a protective order after receipt of discovery demands, however, is more likely to be resolved against the movant who provided no objections and was tardy with the motion (see B.Y. M.D., P.C. v Lancer Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50493[U] [App Term, 9th & 10th Jud Dists 2010]; Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3103:3). The issuance of a protective order is within the broad discretion of the court and dilatory conduct can result in a court’s refusal to exercise its powers under CPLR 3103. Since plaintiff did not proffer a reasonable excuse for its delay in moving for a protective order, the Civil Court did not improvidently exercise its discretion when it denied the branch of plaintiff’s cross motion seeking such relief.
Plaintiff’s motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the documents submitted in support of plaintiff’s motion were admissible pursuant to CPLR 4518. Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment (see Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50065[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).
Plaintiff’s remaining contentions are unpreserved for appellate review or lack merit. Accordingly, the order is affirmed.
Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 2010
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved
Held the provider failed its prima facie case because the billing company president did not show personal knowledge of the provider's practices to make the supporting documents admissible under CPLR 4518.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co. (2009 NY Slip Op 51073(U))The insurer's timely motion to vacate the notice of trial was warranted because the provider incorrectly certified that discovery was complete.
- First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51963(U))The provider's notice of trial was properly vacated because its certificate of readiness incorrectly stated that discovery was complete or waived.
- Great Wall Acupuncture, P.C. v General Assur. Co. (2008 NY Slip Op 28350)A timely motion to vacate a notice of trial should be granted when the certificate of readiness wrongly states discovery is complete.
- B.Y., M.D., P.C. v Lancer Ins. Co. (2010 NY Slip Op 50493(U)) FollowedThe insurer failed to show willful discovery noncompliance warranting dismissal, but the provider had to supply specified discovery.
- Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co. (2010 NY Slip Op 50065(U))The provider failed to establish admissible business records through its third-party billing company's employee.
- Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (2009 NY Slip Op 29155)The provider's billing witness failed to lay a business records foundation, leaving the provider without a prima facie case at trial.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2007 NY Slip Op 51161(U))The providers' billing manager failed to lay a business-records foundation for their partial summary judgment motion.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)The providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
Similar decisions
- Quality Health Prods. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51645(U))The provider's notice of trial was vacated because discovery remained outstanding, and its untimely discovery objections required production.
- A.B. Med. Servs., PLLC v Geico Cas. Ins. Co. (2010 NY Slip Op 50224(U))The provider could not obtain a CPLR 3212 (g) finding establishing its prima facie case because its billing affidavit did not establish admissibility.
- BLR Chiropractic, P.C. v GEICO (2012 NY Slip Op 51647(U))An insurer moving for summary judgment need not attach the provider's bills to its motion.
- Axis Chiropractic, PLLC v United Auto. Ins. Co. (2010 NY Slip Op 52150(U))The provider failed to establish jurisdiction over the Florida insurer despite invoking the long-arm statute for service.
- New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co. (2012 NY Slip Op 50681(U))Timeliness under the 45-day claim-submission requirement turns on the provider's submission date, rather than the insurer's receipt date.