APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Eileen Rakower, J.), dated August 15, 2005, which denied its motion for summary judgment.

Order (Eileen Rakower, J.), dated August 15, 2005, modified to grant plaintiff partial summary judgment on its claims in the sums of $1,796.18 and $340; and as so modified, affirmed, without costs.

The peer review report relied upon by defendant in denying plaintiff’s $1,796.18 and $340 first party no-fault claims did not set forth an adequate factual basis and medical rationale for the reviewer’s determinations, and thus, was insufficient to defeat plaintiff’s prima facie showing of entitlement to summary judgment (see Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95 [2004]).

With respect to plaintiff’s $765 claim, the independent medical examination (IME) report of defendant’s neurologist was sufficient to raise an issue of fact as to the medical necessity of the acupuncture treatments billed for in connection with this claim.

This constitutes the decision and order of the court.
I concurI concurI concur

Decision Date: February 08, 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 (Eileen Nadelson, J.), entered December 19, 2005. 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 moved for summary judgment. The court below denied the motion on the ground that plaintiff’s moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its motion for summary judgment.

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 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., Misc 3d , 2007 NY Slip Op [App Term, 2d & 11th Jud Dists]; 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 motion for summary judgment was properly denied.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: February 7, 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 (Peter Paul Sweeney, J.), entered October 21, 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, the court below denied plaintiff’s motion for summary judgment on the ground that plaintiff failed to make a prima facie showing of its entitlement to summary judgment. Contrary to plaintiff’s contention, we agree with the court below that plaintiff’s moving papers were insufficient (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]). Accordingly, the order is affirmed.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to follow certain propositions of law
set forth in the case cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: February 7, 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.), entered May 10, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services provided its assignor, plaintiff moved for summary judgment. The court below denied the motion and we affirm.As the court below properly determined, plaintiff’s supporting affidavit failed to assert a proper foundation to admit plaintiff’s exhibits as business records. The affidavit, by someone identified only as plaintiff’s “corporate officer,” did
not set forth the affiant’s personal knowledge of plaintiff’s business practices and procedures for creating bills to establish the admissibility of the claims forms and of the other documents annexed to the affidavit, pursuant to the business records exception to the hearsay rule (see CPLR 4518; 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]). Indeed, such an affidavit is of no more probative value than an attorney’s affirmation (Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]).

We note that, contrary to plaintiff’s contention, even where an insurer’s denial of claim form, acknowledging receipt of claims, is properly placed before the court, it “merely establishe[s] that defendant received claim forms submitted by, or on behalf of plaintiff, but [does] not concede the admissibility of the purported claim forms or the facts set forth therein” (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 & 11th Jud Dists]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur. [*2]
Decision Date: February 7, 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 (Kathy J. King, J.), entered October 4, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

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, 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 the affidavit by plaintiff’s corporate officer failed to lay a proper foundation for the
documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. 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., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud
Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: February 6, 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 denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider of medical supplies 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 that the affidavit by plaintiff’s corporate officer was insufficient to establish personal knowledge of the facts set forth therein because the corporate officer did not demonstrate that he possessed sufficient personal knowledge of plaintiff’s office practices and procedures to lay a proper foundation to establish that the documents submitted by plaintiff were admissible pursuant to the business records exception to the hearsay rule (see CPLR 4518). The court denied plaintiff’s motion for summary judgment, holding that plaintiff did not make a prima facie showing, and this appeal 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 [*2]
showing of its entitlement to summary judgment (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]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: February 6, 2007

[*1]

Supreme Court, Appellate Term, Second Department, February 6, 2007

APPEARANCES OF COUNSEL

Cambio, Votto, Cassata, & Gullo, LLP, Staten Island (Michelle S. Titone of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

{**15 Misc 3d at 14} OPINION OF THE COURT

Memorandum.

Order reversed without costs, defendant’s motion for summary judgment granted and complaint dismissed.

In this action to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to attend duly scheduled independent medical examinations (IMEs). Plaintiff opposed the motion, arguing, inter alia, that defendant failed to adequately prove mailing of the IME requests. Although the court below found that defendant offered sufficient proof of having mailed timely IME requests and follow-up requests, it denied defendant’s motion on the ground that there was an issue of fact as to the reason for plaintiff’s assignor’s nonappearances. This appeal by defendant ensued.

In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720, 722 [2d Dept 2006]), the Appellate Division held that “[t]he appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy,” and that the mandatory personal injury protection endorsement (11 NYCRR 65-1.1) requires the “eligible injured person . . . [to] submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require.”

Defendant contends that it was entitled to summary judgment dismissing the action [*2]because the affidavits which it submitted in support of its motion established that it sent a timely IME request and follow-up request to plaintiff’s assignor, and that plaintiff’s assignor failed to appear for the IMEs. Plaintiff argues that defendant was not entitled to summary judgment because, among other things, the affidavits submitted by defendant were insufficient to demonstrate timely mailing of said IME requests.

Contrary to plaintiff’s contentions, the affidavits submitted by defendant were sufficient to establish that defendant’s requests and follow-up requests for IMEs were mailed in accordance with the time periods prescribed by the insurance regulations (11 NYCRR 65-3.5 [b]; 65-3.6 [b]). Since plaintiff raised no issue as to the sufficiency of defendant’s proof of plaintiff’s assignor’s{**15 Misc 3d at 15} nonappearance at the IMEs, we do not pass on the propriety of the motion court’s determination with respect thereto. To the extent that the court below concluded that there was a question of fact regarding the reason for plaintiff’s assignor’s nonappearance at the IMEs, we note that there is no support in the record for such finding. Accordingly, defendant was entitled to summary judgment dismissing the complaint.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.

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 granted defendant’s motion to sever five causes of action.

Order affirmed without costs.

Plaintiff medical supply company commenced this action to recover the sum of $4,880 in first-party no-fault benefits, as assignee of five individuals who were injured in five separate motor vehicle accidents. Defendant insurance company moved for severance of the causes of action, arguing that there were five separate and distinct
claims involving different questions of fact and law. Plaintiff maintained that all of the claims were denied for the same reason, lack of medical necessity, and that four of the five claims sought payment for the same type of medical equipment. The court below granted defendant’s motion for severance and directed plaintiff to purchase four additional index numbers.

The decision to grant a severance (see CPLR 603) is an exercise in judicial discretion, which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see Mothersil v Town Sports Intl., 24 AD3d 424, 425 [2005]; Anderson v Singh, 305 AD2d 620 [2003]). In the instant matter, denial of the claims was based on five different peer reviews, which could result in testimony at trial from five different doctors on the issue of medical necessity. “[T]he particular facts herein relating to each claim are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical” (S.I.A. Med. Supply, Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U] [App Term, 2d & 11th Jud Dists]). A single trial involving different sets of facts regarding the [*2]underlying accidents, injuries and nature and cost of supplies has a danger of being unwieldy and confusing. Accordingly, the order granting severance is affirmed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: February 5, 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 (Diccia T. Pineda-Kirwan, J.), entered October 24, 2005. The order denied plaintiff s cross motion for summary judgment and granted defendant’s unopposed motion to compel discovery to the extent of requiring plaintiff to produce, for a deposition, a physician who treated plaintiff’s assignor.

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

Order, insofar as reviewed, affirmed without costs.

In this action to recover assigned first-party no-fault benefits for health care services rendered to its assignor, defendant moved to compel depositions and plaintiff cross-moved for summary judgment. The court below denied plaintiff’s cross motion and granted defendant’s unopposed motion to the extent of directing plaintiff to produce a treating provider for a deposition. Since plaintiff failed to submit written opposition to defendant’s motion to compel discovery, to the extent the order granted defendant’s motion, it 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 discovery is dismissed.

Plaintiff’s appeal from the branch of the order which denied its cross motion for summary judgment is without merit. As noted by defendant, 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 (see Dan Med., P.C. v New York [*2]Cent. Mut. Fire Ins. Co., ___Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483, supra).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: February 1, 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 (Howard G. Lane, J.), entered June 30, 2005. The order, insofar as appealed from, denied plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, 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.
In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s officer failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s 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., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff’s cross motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.