March 8, 2007

A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50492(U))

https://www.beynensonlaw.com/case-law/a-m-med-servs-p-c-v-liberty-mut-ins-co-2007-ny-slip-op-50492u/

Court
Appellate Term, Second Department
Decided
March 8, 2007
Citation
2007 NY Slip Op 50492(U) · 15 Misc 3d 126(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Provider's prima facie case Defaults and vacatur Discovery and procedure
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co., 15 Misc 3d 126(A), 2007 NY Slip Op 50492(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 failed to establish a business-records foundation and could not appeal discovery relief entered on its default. The insurer moved to strike the complaint for failure to provide discovery, while the provider cross-moved for summary judgment without opposing that motion. The Appellate Term, Second Department, affirmed denial of the cross motion because the provider's officer did not demonstrate personal knowledge of its practices and procedures sufficient to admit the supporting documents. Under CPLR 5511, the court dismissed the appeal from the conditional dismissal requiring a bill of particulars and discovery responses within 45 days. The provider's failure to submit written opposition made that portion of the order a default ruling.

Reported in New York Official Reports at A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50492(U))

[*1]
A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co.
2007 NY Slip Op 50492(U) [15 Misc 3d 126(A)]
Decided on March 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 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
2005-1603 Q C.
A.M. Medical Services, P.C. a/a/o Galina Yarygina, Appellant,

against

Liberty Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Edgar G. Walker, J.), entered March 18, 2005. The order granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days, and denied plaintiff’s cross motion for summary judgment and awarded defendant $50 costs.

Appeal from so much of the order as granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint based upon plaintiff’s failure to provide discovery and plaintiff cross-moved for summary judgment. Plaintiff’s cross motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. However, plaintiff did not address defendant’s motion to dismiss. The court below denied plaintiff’s cross motion, holding, inter alia, that plaintiff did not make a prima facie showing because it failed to lay a sufficient foundation to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form. The court also granted [*2]defendant’s motion to the extent of dismissing the complaint unless plaintiff provided a bill of particulars and responded to outstanding discovery demands within 45 days after service of the order with notice of entry. The instant appeal by plaintiff ensued.

Inasmuch as 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___,
2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s cross motion for summary judgment was properly denied.

Since plaintiff failed to submit written opposition to defendant’s motion to strike the complaint, that branch of the order which granted defendant’s motion to the extent of requiring plaintiff to serve a bill of particulars and respond to defendant’s disclosure demands 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 is dismissed.

Plaintiff’s remaining contention lacks merit.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 8, 2007

Similar decisions