February 26, 2008
Nagle Med. Plaza, P.C. v Allstate Ins. Co. (2008 NY Slip Op 50349(U))
https://www.beynensonlaw.com/case-law/nagle-med-plaza-p-c-v-allstate-ins-co-2008-ny-slip-op-50349u/
- Decided
- February 26, 2008
- Citation
- 2008 NY Slip Op 50349(U) · 18 Misc 3d 139(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Legal questions
- Claimant's prima facie case on motions · Fraudulent incorporation (Mallela) (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 Nagle Med. Plaza, P.C. v Allstate Ins. Co. (2008 NY Slip Op 50349(U))
| Nagle Med. Plaza, P.C. v Allstate Ins. Co. |
| 2008 NY Slip Op 50349(U) [18 Misc 3d 139(A)] |
| Decided on February 26, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., and RIOS, J.
2006-2122 Q C
against
Allstate Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 28, 2006, deemed from a judgment entered on December 8, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 28, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,532.04.
Judgment reversed without costs, so much of the order entered September 28, 2006 as granted plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for all further proceedings.
In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. A judgment was subsequently entered. The instant appeal by defendant ensued.
On appeal, defendant asserts that the affidavit by plaintiff’s president, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s president 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 annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud [*2]Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.
Turning to the merits of defendant’s cross motion for summary judgment, we are of the
opinion that the court below correctly denied same. Defendant argued that plaintiff was ineligible
to receive reimbursement for no-fault benefits since at the time that the services billed for were
rendered, plaintiff was a fraudulently incorporated
professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).
In support of said contention, defendant annexed the transcript of an examination under oath of
plaintiff’s owner. While said individual denied knowledge of many aspects of the everyday
operations of plaintiff, his testimony was inadequate to establish, as a matter of law, that plaintiff
is ineligible for reimbursement of no-fault benefits on the ground that plaintiff’s business
manager, a non-physician, was the true owner of plaintiff (see id.; Boston Post Rd. Med. Imaging, P.C. v
Progressive Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51173[U] [App Term, 9th &
10th Jud Dists 2007]). Accordingly, the court below properly denied defendant’s cross motion for
summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 2008
Legal questions (2)
Questions 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 its president's affidavit did not show personal knowledge of its practices and procedures sufficient to lay a business-records foundation for the annexed documents.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category.
On the merits, when may a no-fault insurer withhold payment because unlicensed persons own or control the provider (Mallela)?
This decision: Insurer's proof of unlicensed ownership/control insufficient
Held the owner's EUO testimony, though showing ignorance of everyday operations, was inadequate to establish as a matter of law that a non-physician business manager was the true owner, so the insurer's summary judgment motion failed.
Of the 61 decisions on this question in the Second Department courts and the Court of Appeals, 13 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U)) FollowedThe insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- State Farm Mut. Auto. Ins. Co. v Mallela (2005 NY Slip Op 02416) FollowedFraudulently incorporated medical providers are ineligible for no-fault reimbursement under 11 NYCRR 65-3.16 (a) (12).
- Boston Post Rd. Med. Imaging, P.C. v Progressive Ins. Co. (2007 NY Slip Op 51173(U)) FollowedThe insurer failed to establish that the provider was ineligible under Mallela or had sold the claims at issue.
Similar decisions
- RLC Med., P.C. v Allstate Ins. Co. (2009 NY Slip Op 51131(U))The provider's billing manager failed to establish admissible business records, defeating the provider's motion for summary judgment.
- V.S. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50400(U))The provider failed to prove claim submission because its corporate officer's affidavit lacked a sufficient business-records foundation.
- Bath Med. Supply, Inc. v Allstate Indem. Co. (2010 NY Slip Op 20059)The insurer failed to justify discovery or preserve fraudulent-billing and EUO nonappearance defenses through proof of timely denials.
- Midborough Acupuncture P.C. v State Farm Ins. Co. (2006 NY Slip Op 26360)An insurer's fraudulent-incorporation defense survives an untimely denial, and discovery into provider ownership and licensing is material.
- Bedford Park Med. Practice, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50289(U))The provider's cross motion for summary judgment failed because its corporate officer did not lay a business-record foundation.