October 2, 2006

Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51879(U))

https://www.beynensonlaw.com/case-law/midborough-acupuncture-p-c-v-new-york-cent-mut-fire-ins-co-2006-ny-slip-op-51879u/

Court: Appellate Term, Second Department
Decided: October 2, 2006
Citation: 2006 NY Slip Op 51879(U) · 13 Misc 3d 132(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 1 and followed in 10 later decisions (see Cited by)
Issues: Provider's prima facie case Staged accidents, lack of coverage
Legal questions: Claimant's prima facie case on motions · No covered accident (founded belief) (see the maps)

Cite as

Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132(A), 2006 NY Slip Op 51879(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's attorney affirmation failed to establish the admissibility of its claim forms or a prima facie entitlement to judgment. Counsel supplied no sufficient basis for personal knowledge or business-record foundation under CPLR 4518. Any insurer denials established receipt of claim forms but did not concede their admissibility or the facts they contained. The provider therefore failed to submit competent evidence under CPLR 3212 (b). The insurer also raised a triable issue whether the injuries arose from an insured incident, a defense that could first be asserted in opposition under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, reversed the judgment, vacated the reargument order, and denied the provider's summary judgment motion upon reargument.

Reported in New York Official Reports at Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51879(U))

[*1]

Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

2006 NY Slip Op 51879(U) [13 Misc 3d 132(A)]

Decided on October 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 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
2005-1748 K C.

Midborough Acupuncture, P.C. A/A/O RALPH RODRIGUEZ, MAXIMO URENA, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 16, 2005, deemed an appeal from a judgment of the same court entered May 16, 2006 (see CPLR 5501 [c]). The judgment, which awarded plaintiff the sum of $4,518.30, was entered pursuant to the order entered September 16, 2005 which, upon reargument, adhered to the prior determination granting plaintiff’s motion for summary judgment.

Judgment reversed without costs, order entered September 16, 2005 vacated and, upon reargument, plaintiff’s motion for summary judgment denied.

In this action by a health care provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel and various documents annexed thereto. However, facts set forth in an attorney’s affirmation are of no probative value absent the attorney’s assertion of a basis for his or her personal knowledge of the facts (Zuckerman v City of New York, 49 NY2d 557 [1980]; Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Plaintiff’s counsel did not lay a sufficient foundation to establish that what counsel represented to be plaintiff’s claim forms were admissible under the business records exception to the hearsay rule (see CPLR 4518; see also People v Kennedy, 68 NY2d 569 [*2][1986]; Trotti v Estate of Buchanan, 272 AD2d 660 [2000]; Dayanim v Unis, 171 AD2d 579 [1991]). To the extent defendant may have issued claim denial forms, said claim denials merely established that defendant received claim forms submitted by, or on behalf of plaintiff, but they did not concede the admissibility of the purported claim forms or the facts set forth therein. In light of plaintiff’s counsel’s apparent lack of personal knowledge, plaintiff failed to establish its prima facie entitlement to summary judgment through the submission of competent evidence (CPLR 3212 [b]; see CPLR 4518; People v Kennedy, 68 NY2d 569, supra; Zuckerman v City of New York, 49 NY2d 557, supra; Read v Ellenville Natl. Bank, 20 AD3d 408 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Stahl v Stralberg, 287 AD2d 613 [2001]).

We note that even if plaintiff had established a prima facie case, in the instant matter, defendant’s opposition to plaintiff’s motion for summary judgment amply demonstrated the existence of a triable issue of fact as to whether “the alleged injur[ies] do[] not arise out of an insured incident,” a defense which may be raised for the first time in opposition to plaintiff’s motion for summary judgment (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). As a result, upon reargument, the court should have denied plaintiff’s motion for summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557, supra).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.

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.

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 case because counsel's affirmation lacked personal knowledge and laid no business-records foundation for the claim forms, and the insurer's denials established receipt but not the forms' admissibility or contents.

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

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.

No covered accident (founded belief)

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Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Founded belief shown; the question must be tried (rules on the question, but another ground decided the case)

Held, as an alternative ground, that the insurer's opposition amply raised a triable issue whether the alleged injuries arose out of an insured incident, requiring denial of the provider's summary judgment motion.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.

Cited in this decision

Melbourne Med., P.C. v Utica Mut. Ins. Co. (2004 NY Slip Op 24221)EUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification.
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.

Cited by (18)

A label shows how the later decision treated this one.

Complete Orthopedic Supplies, Inc. v State Farm Ins. Co. (2007 NY Slip Op 27192) Contrasted (cf., but see)A fee schedule dispute remained triable because the insurer established neither a proper scheduled fee nor a comparable fee for the goods.
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.
Fortune Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50243(U)) FollowedAn insurer's acknowledgment of claim receipt does not concede the admissibility of the claim forms or the facts they contain.
Bajaj v General Assur. (2007 NY Slip Op 27487) FollowedAn insurer's admission that a denial form is genuine does not establish the provider's claim form as an admissible business record.
Raz Acupuncture, P.C. v AIG Indem. Ins. Co. (2010 NY Slip Op 51177(U)) FollowedAn insurer may use the workers' compensation acupuncture fee schedule for chiropractors to reimburse a licensed acupuncturist.
North Acupuncture, P.C. v State Farm Ins. Co. (2006 NY Slip Op 52523(U)) FollowedThe provider failed to establish summary judgment entitlement through competent evidence and could not cure its moving papers in reply.
Andromeda Med. Care, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51629(U)) FollowedThe insurer's out-of-state affidavits were inadmissible because their certificates of conformity were defective and the provider objected.
WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co. (2010 NY Slip Op 50146(U)) FollowedThe provider failed to establish its prima facie case because its owner's affidavit was unsigned and counsel's affirmation was insufficient.
Longevity Med. Supply, Inc. v MVAIC (2019 NY Slip Op 50965(U)) FollowedConflicting proof of claim submission prevented summary judgment for MVAIC on its defense that the provider billed beyond 45 days.
Bedford Park Med. Practice, P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50494(U)) FollowedA provider cannot cure deficient summary judgment proof by first supplying admissible evidence in reply papers.

Show all 18 citing decisions

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A.B. Med. Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 51859(U))The insurer's investigators established a founded belief that the assignor's injuries did not arise from an insured incident.
East Coast Acupuncture, P.C. v New York Cent. Mut. Ins. (2008 NY Slip Op 50344(U))A billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor.