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November 2, 2006

AB Med. Servs., PLLC v Lancer Ins. Co. (2006 NY Slip Op 52241(U))

https://www.beynensonlaw.com/case-law/ab-med-servs-pllc-v-lancer-ins-co-2006-ny-slip-op-52241u/

Court
Appellate Term, Second Department
Decided
November 2, 2006
Citation
2006 NY Slip Op 52241(U) · 13 Misc 3d 139(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Provider's prima facie case
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
AB Med. Servs., PLLC v Lancer Ins. Co., 13 Misc 3d 139(A), 2006 NY Slip Op 52241(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2006)

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 prima facie entitlement to partial summary judgment because it omitted the claim forms from its moving papers. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion without prejudice to renewal on proper papers. To establish entitlement under Insurance Law § 5106 (a), the provider was required to attach the claim forms sued upon. The record showed that no exhibits accompanied the motion. A document purporting to contain the motion exhibits had been rejected below and was not considered. The provider's contention concerning the insurer's exhibits lacked merit.

Reported in New York Official Reports at AB Med. Servs., PLLC v Lancer Ins. Co. (2006 NY Slip Op 52241(U))

[*1]
AB Med. Servs., PLLC v Lancer Ins. Co.
2006 NY Slip Op 52241(U) [13 Misc 3d 139(A)]
Decided on November 2, 2006
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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1954 K C.
AB Medical Services, PLLC a/a/o FELICIA LEGALL, Appellant,

against

Lancer Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered April 8, 2005. The order, insofar as appealed from as limited by plaintiff’s brief, denied plaintiff’s motion for partial summary judgment.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor on the ground that payment of said benefits was overdue. Thereafter, it moved for partial summary judgment and defendant cross-
moved for summary judgment dismissing the complaint. By order entered April 8, 2005, the court below denied both motions without prejudice to renewal upon proper papers. The instant appeal by plaintiff ensued.

In order to establish its prima facie entitlement to summary judgment (see generally Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]), plaintiff was required, inter alia, to annex to its motion papers the claim forms being sued upon (see Patil v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 9th & 10th Jud Dists]; A.B. Med. Servs. PLLC v State Farm Mut. [*2]Auto Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists]). A review of the record on appeal indicates that plaintiff did not annex any exhibits to its moving papers. We note that the document entitled “EXHIBITS SERVED WITH THE PLAINTIFF’S SUMMARY JUDGMENT MOTION,” was rejected by the court below and was not considered by the court in reaching its determination. Plaintiff’s contention regarding defendant’s exhibits
lacks merit. Accordingly, the court below properly denied plaintiff’s motion for partial summary judgment without prejudice to renewal upon proper papers.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 02, 2006

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: claimant did not prove the claim was submitted (mailed to and received by the insurer)

Held the provider failed its prima facie showing because it did not annex to its motion papers the claim forms being sued upon.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 81
  • Appellate TermApp Term 843
  • Trial courtsTrial 139
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 16 decisions (13 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 15 decisions (9 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
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, 78 (this one included) are in the same category.

Cited in this decision

  • Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
  • Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
  • Patil v Countrywide Ins. Co. (2006 NY Slip Op 50306(U))The provider failed to establish admissibility of its claim forms through counsel's affirmation or its own affidavit.
  • A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 50432(U))The providers failed to establish prima facie entitlement to partial summary judgment because they omitted the necessary claim forms.

Cited by

  • Rockaway Med. & Diagnostic, P.C. v Utica Mut. Ins. Co. (2008 NY Slip Op 51033(U))The provider failed to establish entitlement to summary judgment because it omitted its claim forms and supplied an inadequate business-record foundation.

Similar decisions

  • A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NY Slip Op 51893(U))The insurer waived defenses based on incomplete assignments by failing to object within 10 days of receipt.
  • A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 51261(U))The providers failed to establish a prima facie case because their billing manager's affidavit did not establish admissible business records.
  • 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.
  • A.B. Med. Servs., PLLC v Amex Assur. Co. (2015 NY Slip Op 51271(U))A provider need not lay a business-record foundation for its billing documents to establish prima facie entitlement to summary judgment.
  • A.B. Med. Servs. PLLC v Allstate Ins. Co. (2006 NY Slip Op 50746(U))The providers' billing affidavit failed to identify which of the three providers the affiant represented and did not establish a prima facie case.
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