SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 29, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant asserted that it timely denied the claim on the ground of medical necessity based upon a peer review performed once the requested verification was received. The court denied plaintiff’s motion for summary judgment and this appeal by plaintiff ensued. On appeal, plaintiff contends, inter alia, that it was entitled to summary judgment because defendant failed to establish timely mailing of the verification requests and the denial of claim form.

Contrary to plaintiff’s contention, the affidavits submitted by defendant sufficiently established the timely mailing of the initial and follow-up verification requests as well as the denial of claim form since they described in detail the standard office practice and procedure used to ensure that the verification requests and denial of claim form were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

Plaintiff further contends that the denial of claim form was defective since it was issued by Media Referral, Inc. which, plaintiff alleged, was acting as an independent insurance adjuster without a license (see Insurance Law § 2101 [g] [1]; § 2102 [a] [1]). However, plaintiff failed to establish the foregoing. Indeed, the affidavit by the representative of Media Referral, Inc. merely set forth that Media Referral, Inc. mailed verification requests, scheduled a peer review [*2]and mailed a denial of claim form at the specific request and on behalf of defendant.

In light of the foregoing, the order is affirmed.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: March 30, 2007

[*1]

District Court of Nassau County, First District, March 30, 2007

APPEARANCES OF COUNSEL

Michael S. Nightingale, Glen Cove, for defendant. Friedman, Harfenist, Langer & Kraut, Lake Success, for plaintiff.

OPINION OF THE COURT

Gary F. Knobel, J.

Motion by defendant for an order directing (1) plaintiff to produce for deposition “a person with personal knowledge of the justification and the necessity of the services rendered to plaintiff in this claim, along with the complete medical file for this patient within twenty days,” or (2) dismissing plaintiff’s complaint for its willful failure to appear for depositions, is denied in its entirety.

The issue presented on this motion has apparently not been reported in official or unofficial reporters (see, Ostia Med. v Government Empls. Ins. Co., 1 Misc 3d 907[A], 2003 NY Slip Op 51560[U] [2003]; cf. Metropolitan Radiological Imaging v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 675 [2005]): whether a radiological medical provider, who seeks to recover no-fault benefits provided to a patient/assignor based upon a referring physician’s prescription, must produce for its deposition an individual with personal knowledge of the medical necessity for the radiological scans or X-rays it performed. This court answers the question in the negative, and holds that the defendant’s remedy in this instance is to depose the patient/assignor’s nonparty referring, or treating, physician.

This is an action to recover first-party no-fault benefits by plaintiff, a diagnostic radiology company, for various services rendered to its assignor pursuant to a prescription given by the assignor’s treating physician. Plaintiff maintains that it did not diagnose, treat or otherwise examine the patient/assignor. The defendant denied plaintiff’s claim based upon a peer review doctor’s determination that the brain magnetic resonance imaging (MRI) scan performed on March 31, 2005, the lumbar MRI performed on May 5, 2005, the cervical MRI performed on May 10, 2005, and the right shoulder MRI performed on May 13, 2005 were not medically necessary (see, A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50605[U] [2005]).

Defendant contends that the plaintiff failed to comply with defendant’s “Notice To Take Deposition” dated July 24, 2006 which states in pertinent part

“that pursuant to CPLR Art. 31, the testimony upon oral examination of a person from plaintiff with firsthand knowledge of the services rendered and with firsthand knowledge of the [*2]justification for the services in this action, including but not limited to physicians, medical providers, office staff, billing manager, plaintiff’s alleged assignor, and all other necessary persons as adverse parties will be taken before a Notary Public.”

The notice further states

“that said person to be examined is required to produce at the examination the following: Plaintiff’s complete no-fault file for this patient, including any and all papers, prescriptions, wholesale invoices, records, medical reports, X-rays, MRI films or any other form of photograph or films, as well as any physical examination reports or other documents that may be relevant to the issues of necessary of supplies or treatment rendered, in order to establish proof of claim.”

Plaintiff’s explanation for not complying with defendant’s notice is that it did not have a physician, “with firsthand knowledge,” who could testify about the medical necessity to conduct the particular MRI scans on plaintiff’s assignor since the plaintiff did not, nor was it required to, conduct an independent medical examination of that person. In its opposition to the motion at bar, the plaintiff relies on Long Is. Radiology v Allstate Ins. Co. (12 Misc 3d 1167[A], 2006 NY Slip Op 51090[U], *5, revd 36 AD3d 763 [2007]), wherein the trial court stated that “[t]he prescription establishes medical necessity for the purpose of the radiologist.”

In support of its argument that its “Notice to Take Deposition” must be fully enforced, especially since the plaintiff did not object until now, the defendant relies on the Civil Court, Queens County, case of Albatros Med. v Government Empls. Ins. Co. (196 Misc 2d 656, 657 [2003]), where the court held that the defendant insurance company is “entitled to depose plaintiff to discover the basis upon which plaintiff determined that treatment was necessary.” However, the plaintiff medical provider in Albatros was not a radiology facility but apparently the office of the assignor’s treating physicians. The defendant also relies on the Appellate Term, Second Department, decision in West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co. (13 Misc 3d 131[A], 2006 NY Slip Op 51871[U], *2), which held that “[w]here the defendant insurer presents sufficient evidence to establish a defense based upon the lack of medical necessity, the burden shifts to the plaintiff which must then present its own evidence of medical necessity . . . .” However, defendant’s reliance on West Tremont is misplaced since the Appellate Term was not concerned with the deposition of a plaintiff medical provider but with the shifting evidentiary burdens at trial pertaining to the issue of lack of medical necessity (see, James M. Ligouri Physician, P.C. v State Farm Mut. Auto Ins. Co., 15 Misc 3d 1103[A], 2007 NY Slip Op 50465[U]; Nir v Allstate Ins. Co., 7 Misc 3d 544 [2005]). Moreover, the West Tremont court further held that the trial court or jury can accept or reject the defendant insurer’s defense of “no medical necessity,” whether contradicted or not by plaintiff.

The purpose of article 31 of the CPLR is to provide

“full disclosure of all [evidence] material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . a party or the officer, . . . agent or employee of a party . . . [and] any other person, upon notice stating the circumstances or reasons such disclosure is sought or required” (CPLR 3101 [a] [1], [4]).

“The words ‘material and necessary’ [have been held] to require disclosure, upon request, of any facts bearing on the controversy which will [*3]assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see, Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000].) Although the disclosure provisions of CPLR article 31 are to be construed liberally, the scope of permissible discovery is not unlimited since the trial court is invested with broad discretion to (a) supervise discovery, to (b) limit or regulate, at any time on its own initiative, the use of any disclosure device in order to prevent abuse, prejudice or unreasonable annoyance, and to (c) determine what is “material and necessary” as that phrase is used in CPLR 3101 (a) (see, Auerbach v Klein, 30 AD3d 451, 452 [2006]; Smith v Moore, 31 AD3d 628 [2006]; Matter of Andrew Carothers, M.D., P.C. v Insurance Cos. Represented by Bruno, Gerbino & Soriano LLP, 13 Misc 3d 970, 974 [2006]; CPLR 3103 [a]).

Here the defendant has failed to establish, either through another discovery device or other evidence, that any of the plaintiff’s physicians or employees would be in the extraordinary position of possessing personal knowledge bearing on the defense that the MRI scans conducted on plaintiff’s assignor were not medically necessary (compare, Fronczak v Zizzi, 295 AD2d 985, 986 [2002]). The Appellate Division, Second Department, recently held that the defendant insurer is not precluded from asserting and proving this defense against radiologists who accept assignments of no-fault benefits (Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]). The defendant’s more appropriate avenue to pursue in seeking discovery on this issue, is to seek the deposition of the nonparty physician who prescribed the various MRI scans. Here, the defendant’s “Notice to Take Deposition” is too broad since it directs the plaintiff to produce a person to contest the defense to be offered by the defendant insurer at the trial, regardless of whether that person is independent of, and not an employee or agent of, the plaintiff (see generally, Dutch Trading Corp. v Centennial Ins. Co., 39 AD2d 691 [1972]; Buy For Less Wine & Liqs. v Commercial Union Ins. Co., 63 AD2d 976 [1978]). The principle that the “assignee ‘stands in the shoes’ of an assignor” should not be construed to mean that it is the plaintiff radiologist’s burden to produce at its deposition the nonparty who might possess information on the medical necessity for the prescribed radiological imagings. The defendant’s notice also erroneously requires the plaintiff to produce records and reports of other persons and companies.

Accordingly, despite the fact that plaintiff failed to seek timely a protective order pursuant to CPLR 3103 or 3122, the defendant’s notice to take deposition is palpably improper and is stricken (see, Spancrete Northeast v Elite Assoc., 148 AD2d 694, 695 1989]), without prejudice to the service of a proper notice that seeks the deposition of an individual with personal knowledge of plaintiff’s claims, and not the justification and necessity for the services rendered by plaintiff to its assignor.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Sharon M.J. Gianelli, J.), entered April 4, 2006, deemed an appeal from a judgment entered on April 10, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 4, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the sum of $4,736.23.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed the motion, asserting
that it properly denied plaintiff’s claims since there are questions concerning the nature of the loss and whether it arose out of an insured incident. The court below granted plaintiff’s motion for summary judgment finding that defendant failed to support its claim of fraud. The instant appeal by defendant ensued.

Since defendant raised no issue in the court below or on appeal regarding plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

The record reveals that the assignors appeared for examinations under oath on August 24, 2004 and September 23, 2004 and that, on January 27, 2005, defendant issued denial of claim forms for the two $912 bills submitted by plaintiff. Defendant did not assert that it issued a [*2]denial of claim form for plaintiff’s $879.73 bill nor did it deny receipt of said bill. Since defendant failed to pay or deny the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Despite its untimely denial of plaintiff’s claims, defendant was not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). However, we are of the opinion that the affidavit of defendant’s investigator was insufficient to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant failed to raise a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), the judgment is affirmed.

McCabe, J.P., Tanenbaum and Lippman, JJ., concur.
Decision Date: March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered January 5, 2006. The order denied plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $2,630.44, and matter remanded to the court below for the calculation of statutory interest and attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant submitted opposition papers
which asserted, inter alia, that defendant timely denied plaintiff’s claims based upon peer review reports and because plaintiff sought fees in excess of the Workers’ Compensation fee schedule. The court below denied plaintiff’s motion on the ground that defendant’s submissions demonstrated the existence of triable issues of fact. The instant appeal by plaintiff ensued.

Inasmuch as defendant failed to specify the basis for its conclusory assertion in its opposition papers that plaintiff failed to set forth a prima facie case, we do not pass on the propriety of the implicit determination of the court below that plaintiff made such a showing.

In opposition to plaintiff’s motion, defendant’s claims representative stated that defendant never received the claim form seeking the sum of $480. Having found that plaintiff shifted the [*2]burden to plaintiff, the lower court erred in implicitly finding that defendant’s mere denial of receipt of said form was sufficient to rebut the presumption of receipt, thereby raising an issue of fact (see A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff was entitled to summary judgment upon this claim. We note that the affidavit of plaintiff’s billing manager set forth that he personally mailed plaintiff’s claim forms.

The affidavit of defendant’s claims representative established that defendant timely denied plaintiff’s claims for the sums of $1,573.24, $1,546.20 and $604.24 on the ground of lack of medical necessity, based on the peer review reports of Dr. Seliger, Dr. Russ and Dr. Mo, respectively, which were attached to the denial of claim forms. Since the affirmed peer review report of Dr. Seliger set forth a factual basis and medical rationale for his opinion that the medical services provided were medically unnecessary, it was sufficient to raise a triable issue of fact as to plaintiff’s $1,573.24 claim (see Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]). However, the peer review reports of Dr. Russ and Dr. Mo indicated that the claims for $1,546.20 and $604.24, respectively, were not medically necessary since they lacked sufficient information upon which to make such a determination. “[T]he fact that the reviewer[s] lacked sufficient information does not, in and of itself, demonstrate a triable issue of fact, without a showing that defendant sought to obtain such information by means of a request pursuant to the verification procedures (see 11 NYCRR 65.15 [d], now 11 NYCRR 65-3.5 [b]; 11 NYCRR 65.15 [e], now 11 NYCRR 65-3.6 [b])” (A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists]; see also A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). Since defendant did not demonstrate that it sought verification to obtain the missing information, defendant did not establish a triable issue of fact with regard to the claims for the sums of $1,546.20 and $604.24. Consequently, plaintiff was entitled to summary judgment upon these two claims. With respect to the remaining claims, defendant’s claims representative asserted that they were timely denied based on the ground that the fees charged were in excess of the Workers’ Compensation fee schedule. Said defense raised a triable issue of fact warranting the denial of plaintiff’s motion for summary judgment as to said claims (see Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50856[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, partial summary judgment is granted to plaintiff in the sum of $2,630.44, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Randy Sue Marber, J.), dated June 14, 2005, and from an order of the same court, entered March 6, 2006. The order dated June 14, 2005, insofar as appealed from, denied plaintiff’s motion for summary judgment. The order entered March 6, 2006 denied plaintiff’s motion to vacate the order dated June 14, 2005 and to renew plaintiff’s motion for summary judgment.

Appeal from order entered March 6, 2006 dismissed.

Order dated June 14, 2005, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s 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. By order dated June 14, 2005, the court below denied the motion on the ground, inter alia, that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s corporate officer failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein. Plaintiff appeals from the denial of its motion for summary judgment. Plaintiff also appeals from the order entered March 6, 2006 which denied its motion to vacate the June 14, 2005 order and to renew its motion [*2]for summary judgment.

Since 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 proper foundation for the admissibility, 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 (see Fortune Med., P.C. v Allstate Ins. Co., _____ Misc 3d _____[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th 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, the order dated June 14, 2005 properly denied plaintiff’s motion for summary judgment.

To the extent plaintiff also appeals from the order entered March 6, 2006, plaintiff has raised no issue with respect thereto and, thus, said appeal is dismissed as abandoned.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered February 8, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s
business records. The court below denied the motion on the ground that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s corporate officer was legally insufficient. Plaintiff appeals from the denial of its motion for summary judgment.

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., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). [*2]Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Milagros A. Matos, J.), entered December 22, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an “affirmation” from plaintiff’s counsel, an affidavit by an employee of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s employee stated in a conclusory
manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that plaintiff’s moving papers failed to establish plaintiff’s prima facie entitlement to judgment as a matter of law. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s employee was insufficient to establish that said employee 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 (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, [*2]2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

In light of the foregoing, we reach no other issue.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered December 22, 2005. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion on the ground that plaintiff did not make a prima facie showing because plaintiff failed to establish that defendant issued an untimely denial of plaintiff’s claim. The court granted
plaintiff’s motion for summary judgment and defendant raises the same argument on appeal.

A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see 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]). Contrary to defendant’s contention, plaintiff was not required to demonstrate that defendant’s denial was untimely as part of plaintiff’s prima facie case. Since defendant failed to raise any substantive defense in admissible form, whether or not it is subject to preclusion, the timeliness of defendant’s denial is rendered academic. Consequently, the order is affirmed.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered January 6, 2006. The order, insofar as appealed from as limited by plaintiff’s brief, granted defendant’s motion to compel examinations before trial of plaintiff and plaintiff’s assignor.

Appeal dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved pursuant to CPLR 3212 (f) to stay plaintiff’s motion for summary judgment so that defendant could conduct examinations before trial of plaintiff’s assignor and the two other people who were allegedly inside the vehicle when the accident occurred. The court denied both motions and directed plaintiff to comply with defendant’s discovery demands. Thereafter, in an order entered January 6, 2006, from which plaintiff appeals, the court, insofar as is relevant, granted defendant’s motion to compel plaintiff and plaintiff’s assignor to appear for an examination before trial on February 7, 2006. Subsequent to the entry of the January 6, 2006 order appealed from, the Civil Court entered an order dismissing the action since plaintiff had not obtained a stay of enforcement, nor had plaintiff or its assignor appeared for the ordered examinations before trial. Thus, dismissal of the action rendered the instant appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Vista Surgical Supplies, Inc. v Lumbermans Mut. Cas. Co., 13 [*2]Misc 3d 138[A], 2006 NY Slip Op 52221[U] [App Term, 2d & 11th Jud Dists]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered January 6, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that plaintiff’s moving papers failed to establish plaintiff’s prima facie entitlement to judgment as a matter of law. Plaintiff appeals from the denial of its motion for summary judgment.

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 (see 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 motion for summary judgment was properly denied. [*2]

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007