March 26, 2007

Dan Med., P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 50602(U))

https://www.beynensonlaw.com/case-law/dan-med-p-c-v-new-york-cent-mut-ins-co-2007-ny-slip-op-50602u/

Court: Appellate Term, Second Department
Decided: March 26, 2007
Citation: 2007 NY Slip Op 50602(U) · 15 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Provider's prima facie case Discovery and procedure Defaults and vacatur
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Dan Med., P.C. v New York Cent. Mut. Ins. Co., 15 Misc 3d 128(A), 2007 NY Slip Op 50602(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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's summary judgment showing failed for lack of a business-records foundation, and its discovery appeal concerned a default order. The Appellate Term, Second Department, affirmed the order, insofar as reviewed, denying the provider's cross motion for summary judgment. The officer's affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to admit the attached documents; the insurer raised that deficiency for the first time on appeal. The court dismissed the appeal from the portion compelling the provider to appear through a treating physician for a deposition. Because the provider submitted no written opposition to the discovery motion, that portion was entered on default and was not appealable by the provider under CPLR 5511.

Reported in New York Official Reports at Dan Med., P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 50602(U))

[*1]

Dan Med., P.C. v New York Cent. Mut. Ins. Co.

2007 NY Slip Op 50602(U) [15 Misc 3d 128(A)]

Decided on March 26, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., RIOS and BELEN, JJ
2006-44 Q C.

Dan Medical, P.C., a/a/o Rose Diogene, Appellant,
against
New York Central Mutual Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered October 24, 2005. The order partially granted defendant’s unopposed motion to compel disclosure and denied plaintiff’s cross motion for summary judgment.

Appeal from so much of the order as partially granted defendant’s motion to compel disclosure dismissed.

Order, insofar as reviewed, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for health care services rendered to its assignor. After defendant moved to compel disclosure, plaintiff cross-moved for summary judgment. Plaintiff did not address defendant’s motion to compel disclosure. By order entered October 24, 2005, the court below denied plaintiff’s cross motion and granted defendant’s motion to compel disclosure to the extent of requiring plaintiff to appear by a treating physician for an examination before trial. The instant appeal by plaintiff ensued.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, failed to lay a proper foundation for the documents [*2]annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer 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]; 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 cross motion for summary judgment was properly denied.

Since plaintiff failed to submit written opposition to defendant’s motion to compel disclosure, that branch of the order which granted defendant’s motion to the extent of requiring plaintiff to appear by a treating physician for an examination before trial was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s motion to compel disclosure is dismissed.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 26, 2007

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.

Claimant's prima facie case on motions

Open the full map

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 showing because its corporate officer's affidavit did not show personal knowledge of the provider's practices and procedures to lay a business-records foundation for the annexed documents.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

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.

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.

Cited by

A label shows how the later decision treated this one.

Colonia Med., P.C. v Liberty Mut. Fire Ins. Co. (2011 NY Slip Op 52283(U)) FollowedThe provider failed to establish prima facie entitlement to summary judgment despite the insurer's preclusion from offering evidence.

Similar decisions

Preferred Med. Imaging, P.C. v Hudson Ins. Co. (2007 NY Slip Op 50685(U))The provider's claim forms lacked a sufficient business-records foundation, so its prima facie summary judgment showing failed.
A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50492(U))The provider failed to establish a business-records foundation and could not appeal discovery relief entered on its default.
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.
All Mental Care Medicine, P.C. v Travelers Indem. Co. (2007 NY Slip Op 50607(U))The provider failed to make a prima facie showing because its corporate officer's affidavit did not establish a business-records foundation.
Fortune Med., P.C. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 50497(U))The provider's deficient business-records foundation defeated summary judgment, and its default barred review of the discovery ruling.