March 31, 2010

563 Grand Med., P.C. v Kemper Auto & Home Ins. Co. (2010 NY Slip Op 50582(U))

https://www.beynensonlaw.com/case-law/563-grand-med-p-c-v-kemper-auto-home-ins-co-2010-ny-slip-op50582u/

Court
Appellate Term, Second Department
Decided
March 31, 2010
Citation
2010 NY Slip Op 50582(U) · 27 Misc 3d 127(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Provider's prima facie case Discovery and procedure
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
563 Grand Med., P.C. v Kemper Auto & Home Ins. Co., 27 Misc 3d 127(A), 2010 NY Slip Op 50582(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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.

The provider failed to establish a business-record foundation through its outside billing company's employee and was denied summary judgment. The Appellate Term, Second Department, affirmed that denial because the affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to admit the supporting documents. The court dismissed the appeal from the portion permitting the insurer to serve discovery requests while preserving the provider's objections. Under CPLR 5511 and CPLR 3122 (a), the provider was not aggrieved by that permission. The court did not address whether the insurer had established entitlement to compel depositions of specified persons, because the Civil Court had not granted that relief.

Reported in New York Official Reports at 563 Grand Med., P.C. v Kemper Auto & Home Ins. Co. (2010 NY Slip Op 50582(U))

[*1]
563 Grand Med., P.C. v Kemper Auto & Home Ins. Co.
2010 NY Slip Op 50582(U) [27 Misc 3d 127(A)]
Decided on March 31, 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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on March 31, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2008-1525 K C.
563 Grand Medical, P.C. a/a/o OMAR RODRIGUEZ and DANIEL C. RODRIGUEZ, Appellant,

against

Kemper Auto and Home Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered February 15, 2008. The order (1) denied plaintiff’s motion for summary judgment and (2) granted defendant’s cross motion seeking summary judgment dismissing the complaint or, in the alternative, to compel examinations before trial, to the extent of permitting defendant to serve discovery requests upon plaintiff, while preserving plaintiff’s right to object to such requests.

ORDERED that the appeal from so much of the order as granted defendant’s cross motion to the extent of permitting defendant to serve discovery requests upon plaintiff, while preserving plaintiff’s right to object to such requests, is dismissed as plaintiff is not aggrieved thereby; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, to compel examinations before trial (EBTs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion “to the extent of permitting defendant to serve discovery requests upon plaintiff. Plaintiff’s right to object to said requests is preserved.” The instant appeal by plaintiff ensued.

A review of the record indicates that plaintiff failed to establish its prima facie entitlement to summary judgment. The affidavit in support of plaintiff’s motion, submitted by the “employee of the company providing billing services for the plaintiff,” was insufficient to establish said employee’s personal knowledge of plaintiff’s practices and procedures so as to lay a [*2]foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers (see Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

While plaintiff contends that defendant did not establish its entitlement to compel the EBTs of specified persons, we do not pass upon said issue as the Civil Court did not grant such relief. Rather, the court merely “permitt[ed] defendant to serve discovery requests upon plaintiff” and noted that plaintiff’s “right to object to said requests is preserved.” Therefore, plaintiff is not aggrieved by the part of the order which gave defendant permission to serve discovery requests and preserved plaintiff’s right to object to the requests (see CPLR 5511; see also CPLR 3122 [a]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 31, 2010

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