Rockaway Med. & Diagnostic, P.C. v Utica Mut. Ins. Co. (2008 NY Slip Op 51033(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered February 23, 2006, deemed from a judgment entered January 10, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 23, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,758.40.

Judgment reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s
counsel, an affidavit from plaintiff’s office services supervisor, and an unaffirmed, undated letter of medical necessity. In opposition, defendant argued, inter alia, that plaintiff’s affidavit failed to lay a proper foundation for the documents annexed to the motion papers and that, as a result, plaintiff failed to establish a prima facie case. In addition, defendant cross-moved for summary judgment based upon the failure of plaintiff’s assignor to appear for examinations under oath and upon plaintiff’s breach of a so-ordered discovery stipulation. The court below granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. This appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to its motion papers. We agree. The affidavit submitted by plaintiff’s office services supervisor was insufficient to establish that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents [*2]annexed to plaintiff’s moving papers. In any event, plaintiff failed to annex to its motion for summary judgment the claim forms upon which it sought to recover. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; AB Med. Servs, PLLC v Lancer Ins. Co., 13 Misc 3d 139[A], 2006 NY Slip Op 52241[U] [App Term, 2d & 11th Jud Dists 2006]; A.B. Med. Servs., PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists 2005]).

With respect to the merits of defendant’s cross motion for summary judgment, the court below correctly denied same since defendant failed to demonstrate as a matter of law its entitlement to summary judgment. Defendant did not demonstrate that plaintiff’s causes of action were premature (cf. Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). Further, contrary to defendant’s contention, the parties’ so-ordered stipulation does not entitle defendant to summary judgment since plaintiff’s time to provide the verified responses to defendant’s discovery demands was stayed during the pendency of plaintiff’s motion for summary judgment (see CPLR 3214 [b]; Reilly v Oakwood Hgts. Community Church, 269 AD2d 582 [2000]; John Eric Jacoby, M.D., P. C. v Loper Assocs., 249 AD2d 277 [1998]; cf. Vista Surgical Supplies Inc. v Progressive Cas. Ins. Co., 13 Misc 3d 141[A], 2006 NY Slip Op 52267[U] [App Term, 2d & 11th Jud Dists 2006] [so-ordered stipulation provided that the time to furnish discovery could not be extended without leave of court]).

In light of the foregoing, we do not reach defendant’s remaining contentions.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.