—[*1] Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Michael F. Ingham and James Carman of counsel), for appellant.

Gallagher, Walker, Bianco & Plastaras, Mineola, N.Y. (Robert J. Walker and Dominic Bianco of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated January 23, 2007, the petitioner appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated June 15, 2007, which denied the petition.

Ordered that the order is affirmed, with costs.

On December 10, 2004, Mira Duncalf, an insured of Progressive Northern Insurance Company (hereinafter Progressive) was involved in an automobile accident with an insured of Sentry Insurance A Mutual Company (hereinafter Sentry). On or about May 16, 2005, Progressive commenced an arbitration proceeding against Sentry with Arbitrations Forum, Inc. (hereinafter the arbitrator), seeking reimbursement, through a priority-of-payment claim (hereinafter the prior claim), of the first-party benefits paid to its insured (hereinafter the prior arbitration) (see generally Insurance Law § 5105; 11 NYCRR 65-3.12 [b]; 65-4.11). In a decision and award dated July 11, 2006, the arbitrator denied the prior claim.

On or about September 19, 2006, Progressive commenced a second arbitration proceeding with the arbitrator seeking the same reimbursement, albeit through a loss-transfer claim (hereinafter [*2]the instant claim), against Sentry (hereinafter the instant arbitration). In the instant arbitration, Sentry, inter alia, raised the affirmative defense of res judicata. In a decision and award dated January 23, 2007 (hereinafter the instant award), the arbitrator denied the instant claim on that ground. Subsequently, Progressive commenced this proceeding pursuant to CPLR article 75 to vacate the instant award. The Supreme Court denied the petition. We affirm.

The arbitrator did not exceed its authority by rendering an award in favor of Sentry (see CPLR 7511 [b] [1] [iii]). It was within the arbitrator’s authority to determine the preclusive effect of the prior arbitration on the instant arbitration (see Matter of City School Dist. of City of Tonawanda v Tonawanda Educ. Assn., 63 NY2d 846, 848 [1984]; Board of Educ. of Patchogue-Medford Union Free School Dist. v Patchogue-Medford Congress of Teachers, 48 NY2d 812, 813 [1979]; Matter of Globus Coffee, LLC v SJN, Inc., 47 AD3d 713, 714 [2008]; Matter of Town of Newburgh v Civil Serv. Empls. Assn., 272 AD2d 405 [2000]; see also Matter of County of Jefferson [Jefferson County Deputy Sheriff’s Assn., Local 9100], 265 AD2d 802 [1999]; Matter of Port Auth. of N.Y. & N.J. v Office of Contract Arbitrator, 254 AD2d 194, 195 [1998]; Rabinovich v Shchegol, 251 AD2d 25 [1998]; Matter of Port Auth. of N.Y. & N.J. v Port Auth. Police Sergeants Benevolent Assn., 225 AD2d 503 [1996]; Matter of Birchwood Mgt. Corp. v Local 670, Stationary Engrs., RWDSU, AFL-CIO, 154 AD2d 531 [1989]; Vilceus v North Riv. Ins. Co., 150 AD2d 769, 770 [1989]; Matter of Resnick v Serlin, 119 AD2d 825 [1986]; Matter of Board of Educ., Florida Union Free School Dist. [Florida Teachers Assn.], 104 AD2d 411, 411-412 [1984], affd 64 NY2d 822 [1985]).

Moreover, it is clear that the instant claim made by Progressive arose out of the same transaction as the prior claim that was denied in the prior arbitration (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Matter of Aetna Cas. & Sur. Co. v Bonilla, 219 AD2d 708, 708-709 [1995]; Matter of Ulster Elec. Supply Co. v Local 1430, Intl. Bhd. of Elec. Workers, 253 AD2d 765 [1998]). While Progressive now alleges different facts regarding how the accident occurred, and a different theory upon which reimbursement is sought, the instant arbitration and the instant claim involve the same accident and the same parties, while Progressive seeks reimbursement of the same payments, albeit on a different legal theory (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Boronow v Boronow, 71 NY2d 284, 290 [1988]; Smith v Russell Sage Coll., 54 NY2d 185, 192-193 [1981]; Matter of Reilly v Reid, 45 NY2d 24, 29 [1978]; Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1, 5 [2000]).

Where, as here, the facts upon which the prior claim and the instant claim are based were related in time, space, and origin, and form a convenient trial unit, and their treatment as a unit conforms to the parties’ expectations (see Boronow v Boronow, 71 NY2d 284, 289 [1988]; Smith v Russell Sage Coll., 54 NY2d 185, 192-193 [1981]; Matter of Reilly v Reid, 45 NY2d 24 [1978]; Flushing Plumbing Supply Co., Inc. v F&T Mgt. & Parking Corp., 29 AD3d 855, 856 [2006]; Couri v Westchester Country Club, 186 AD2d 715, 716 [1992]; Matter of Bauer v Planning Bd. of Vil. of Scarsdale, 186 AD2d 129, 130 [1992]), the arbitrator’s decision to bar the instant compulsory arbitration (see Insurance Law § 5105) was neither arbitrary nor capricious and was supported by a “reasonable hypothesis” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]; see Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005]). Thus, the instant award was not subject to vacatur under CPLR 7511 (b) (1).

Progressive’s remaining contentions are without merit or need not be reached in light of our determination. Mastro, J.P., Skelos, Lifson and Leventhal, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, May 2, 2008

APPEARANCES OF COUNSEL

Rossillo & Licata, P.C., Westbury (John J. Rossillo of counsel), for defendant. Law Offices of Bruce Newborough, P.C., Brooklyn (Damin J. Toell of counsel), for plaintiff.

{**20 Misc 3d at 292} OPINION OF THE COURT

Peter P. Sweeney, J.

Plaintiff Second Medical, P.C., as assignee of Marvin Calender, commenced this action to recover assigned first-party no-fault benefits. The trial of the action took place on December 20, 2007. The only witness to testify was Inga Lev, the president of Maugust, Inc., the company that does plaintiff’s medical billing.

The issue presented is whether Ms. Lev’s testimony was sufficient to establish the admissibility of the underlying no-fault claim form, which incorporated information contained in medical records which were neither offered nor admitted in evidence and which were never shown to be admissible under any hearsay exception. The court answers this question in the negative.

Factual Background

Ms. Lev testified that once a week, someone from plaintiff’s office would deliver to her a number of patient files. Each file contained one or more medical reports which described the [*2]nature of the services that plaintiff purportedly provided to a particular patient. Each file also contained an executed assignment of benefits form and information identifying the insurer who was responsible for payment of first-party no-fault benefits.

Either Ms. Lev or one of her coworkers would prepare no-fault claim forms based upon the information contained on the documents contained in patient files and mail the claim forms to the insurers responsible for payment of the first-party no-fault benefits along with an executed assignment. Ms. Lev gave no testimony concerning the practices and procedures that plaintiff utilized in creating the documents contained in the patient files.

Ms. Lev testified that she prepared the no-fault claim form in this action pursuant to the above procedures and mailed it to the defendant with an executed assignment on November 20, 2002. She testified that as of the date of trial, the first-party no-fault benefits due and owing were not paid. In its denial of claim form, which was received in evidence, defendant acknowledged receiving the claim form on November 25, 2002. When plaintiff’s counsel offered the claim form in evidence, defendant’s counsel objected arguing that Ms. Lev failed to lay a proper foundation for its admission as a business record pursuant to CPLR 4518 (a).

Relying primarily on Pine Hollow Med., P.C. v Progressive Cas. Ins. Co. (13 Misc 3d 131[A], 2006 NY Slip Op 51870[U]{**20 Misc 3d at 293} [App Term, 2d & 11th Jud Dists 2006]), plaintiff’s counsel argued that since Ms. Lev established plaintiff had a business duty to Maugust to deliver the patient files and that Maugust routinely relied on the medical reports and other documents contained in the files and fully incorporated them into no-fault claim forms which it created in the regular course of its business, a proper foundation for the admission of the claim form as a business record was laid.

The court reserved decision on defendant’s objection. The parties thereafter submitted memorandums of law in support of their respective positions. For the reasons stated below, the court now sustains defendant’s objection.

Legal Analysis

A plaintiff provider establishes a prima facie entitlement to judgment as a matter of law “by submitting evidentiary proof that the prescribed statutory billing form had been mailed and received, and that payment of no-fault benefits was overdue” (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]). It is now clear that this language should not be interpreted as dispensing with the requirement that the provider tender evidentiary proof of the transaction sued upon “in admissible form” (Bajaj v General Assur., 18 Misc 3d 25, 27-28 [App Term, 2d & 11th Jud Dists 2007]). Thus, to prevail in an action to recover first-party no-fault benefits, the provider must proffer evidence in admissible form establishing the facts asserted in the underlying no-fault claim form (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, 47 [App Term, 2d & 11th Jud Dists 2006] [“(t)o the extent defendant issued denial of claim forms (NF-10s) or admitted receipt of plaintiff’s claim forms, such admissions did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form, which it failed to do”]; see also Bajaj, supra; 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 2006]).

Here, plaintiff attempted to prove the facts asserted in the claim form by offering it as a [*3]business record pursuant to CPLR 4518 (a). CPLR 4518 (a), which sets forth the criteria for admission under what is commonly referred to as the business record exception to the hearsay rule, provides:

“Any writing or record, whether in the form of an{**20 Misc 3d at 294} entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.”

The three foundation requirements of CPLR 4518 (a) are

“first, the record must be made in the regular course of business—reflecting a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business. Second, it must be the regular course of business to make the record—in other words, the record was made pursuant to established procedures for the routine, habitual, systematic making of such a record. Finally, the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made” (People v Cratsley, 86 NY2d 81, 89 [1995], citing People v Kennedy, 68 NY2d 569, 579-580 [1986]).

It is well settled that in order to lay these foundational requirements, the proponent of the record must call as a witness someone with knowledge of the maker’s business practices and procedures (see e.g. Blair v Martin’s, 78 AD2d 895 [2d Dept 1980]; Sabatino v Turf House, 76 AD2d 945, 946 [3d Dept 1980]; see also Hefte v Bellin, 137 AD2d 406, 408 [1st Dept 1988]). The witness need not have made the record or even be familiar with the record (Faust v New York City Tr. Auth., 4 Misc 3d 89, 91 [App Term, 2d & 11 Jud Dists 2004]). It is not even required that the witness be a current or former employee of the business that created the record (see e.g. People v Cratsley, 86 NY2d 81 [1995]; People v Meekins, 34 AD3d 843, 845 [2d Dept 2006]; People v DiSalvo, 284 AD2d 547 [2d Dept 2001]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727 [2d Dept 1986]; William Conover, Inc. v Waldorf, 251 AD2d 727 [3d Dept 1998]). However, unless the witness demonstrates some familiarity with the particular record keeping procedures of the business that created the record “such that he [can] state that the record he received was made in the regular course of [that] business, that{**20 Misc 3d at 295} it was in the regular course of [that] business to make the record and that it was made contemporaneously with [the events recorded in the record]” the record is inadmissible (People v Surdis, 275 AD2d 553, 554 [3d Dept 2000]).

Here, Ms. Lev did not demonstrate any familiarity with plaintiff’s business practices and procedures. Accordingly, she did not establish that the documents contained in Mr. Calender’s patient file were business records within the meaning of CPLR 4518 (a). Further, she did not establish the admissibility of the file documents under any other hearsay exception. Since all the documents contained in Mr. Calender’s patient file constituted inadmissible hearsay, it necessarily follows that the no-fault claim form, which incorporated these records, is also hearsay. [*4]

Plaintiff’s reliance on Pine Hollow Med., P.C. is misplaced. In Pine Hollow Med., P.C., the court stated that

“it is well-settled that where an entity ‘routinely relies upon the business records of another entity in the performance of its own business’ . . . , and ‘fully incorporate[s]’ said information into records made in the regular course of its business . . . , the subsequent record is admissible notwithstanding that the preparer lacked personal knowledge of the information’s accuracy” (13 Misc 3d 131[A], 2006 NY Slip Op 51870[U], *1-2 [2006] [citations omitted and emphasis added]).

While this is a true statement of law, it was never demonstrated in this case that the documents contained in the patient files which Ms. Lev and her coworkers routinely relied upon and fully incorporated into the no-fault claim forms qualified as business records within the meaning of CPLR 4518 (a). The root of plaintiff’s argument appears to be that the term “business records” as used in Pine Hollow Med., P.C. means any records, including records that may constitute hearsay. The premise of plaintiff’s argument is without logic or support and is belied by the cases cited in Pine Hollow Med., P.C.

In all the cases cited in Pine Hollow Med., P.C., where documents were admitted in evidence through the testimony of a witness who was neither a current nor former employee of the person or entity that created the documents, the witness had demonstrated his or her familiarity with the business practices and procedures pursuant to which the documents were created. These witnesses were therefore able to qualify the documents{**20 Misc 3d at 296} as business records. In People v Cratsley, the foundation witness testified that the IQ test report that was admitted in evidence was prepared by an independent psychologist as an initial evaluation of a client, that it was conducted in accordance with her employer’s requirements and on her employer’s behalf, that the report was prepared at the time the examination took place and that the examination was conducted to fulfil certain statutory and regulatory requirements with which she was familiar (86 NY2d at 88). In People v DiSalvo, the foundation witness testified that he was familiar with the specific business practices and procedures of the dump site facility that created the records which the court admitted in evidence (284 AD2d at 548-549). In Plymouth Rock Fuel Corp. v Leucadia, Inc., the foundation witness testified that the fuel oil delivery tickets that were admitted as evidence were prepared by contract drivers that were hired by his company who had a business duty to record certain information on the tickets, including the amount, location and date of fuel delivered (117 AD2d at 728).

Here, plaintiff laid absolutely no foundation for the admission of the documents contained in Mr. Calender’s patient file. To accept plaintiff’s interpretation of Pine Hollow Med., P.C., this court would have to conclude that these documents were admissible notwithstanding that plaintiff had never demonstrated that the informant had personal knowledge of the acts, events and occurrences that the records document and was under a business duty to report them to the entrant. This court would also have to conclude that it was not necessary for the plaintiff to demonstrate that it was within the scope of the entrant’s business duty to record the acts, transactions and occurrences and that each participant in the chain producing the records, from the initial declarant to the final entrant, was acting within the course of regular business or that the declarations contained in the records were admissible through some other hearsay exception. As stated by the Court of Appeals in Matter of Leon RR (48 NY2d 117, 122-123 [1979]): [*5]

“To constitute a business record exception to the hearsay rule, the proponent of the record must first demonstrate that it was within the scope of the entrant’s business duty to record the act, transaction or occurrence sought to be admitted. But this satisfies only half the test. In addition, each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting{**20 Misc 3d at 297} within the course of regular business conduct or the declaration must meet the test of some other hearsay exception (Johnson v Lutz, 253 NY 124, 128; Toll v State of New York, 32 AD2d 47, 50). Thus, not only must the entrant be under a business duty to record the event, but the informant must be under a contemporaneous business duty to report the occurrence to the entrant as well (Richardson, Evidence [10th ed-Prince], § 299). The reason underlying the business records exception fails and, hence, the statement is inadmissible hearsay if any of the participants in the chain is acting outside the scope of a business duty (Johnson v Lutz, supra) . . .

“Unless some other hearsay exception is available (Toll v State of New York, supra), admission may only be granted where it is demonstrated that the informant has personal knowledge of the act, event or condition and he is under a business duty to report it to the entrant (Johnson v Lutz, supra; cf. Model Code of Evidence rule 514).”

In sum, since the documents contained in Mr. Calender’s patient file constituted hearsay, the no-fault claim form which was based on the information contained in these documents is also hearsay. Hearsay cannot be transformed into nonhearsay simply because a business routinely relies upon it and integrates it into its own records.

Inasmuch as plaintiff did not proffer evidence in admissible form establishing the facts asserted in the claim form, plaintiff did not make out a prima facie case.

Accordingly, it is hereby ordered that judgment be entered in favor of the defendant dismissing plaintiff’s complaint.

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 June 22, 2006. The order denied the petition to vacate the master arbitrator’s award.

Order modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

In this proceeding to vacate a master arbitrator’s award, the record reveals that the arbitrator denied petitioner’s claim for assigned first-party no-fault benefits based on a finding that the assignment of benefits was to an entity different from petitioner, and concluded that petitioner was without standing to seek reimbursement of no-fault
benefits. The master arbitrator upheld the arbitrator’s award as properly reached and supported by the evidence. In our view, the determination of the master arbitrator had a rational basis and was not arbitrary and capricious (Damadian MRI in Garden City v Windsor Group Ins., 2 Misc 3d 138[A], 2004 NY Slip Op 50262[U] [App Term, 2d & 11th Jud Dists 2004]; see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633 [2008]; see generally Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Weston Patterson, J.P., Golia and Rios, 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, Queens County (Thomas D. Raffaele, J.), entered February 23, 2006, deemed from a judgment entered January 10, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 23, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,758.40.

Judgment reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

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 from plaintiff’s office services supervisor, and an unaffirmed, undated letter of medical necessity. In opposition, defendant argued, inter alia, that plaintiff’s affidavit failed to lay a proper foundation for the documents annexed to the motion papers and that, as a result, plaintiff failed to establish a prima facie case. In addition, defendant cross-moved for summary judgment based upon the failure of plaintiff’s assignor to appear for examinations under oath and upon plaintiff’s breach of a so-ordered discovery stipulation. The court below granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. This appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to its motion papers. We agree. The affidavit submitted by plaintiff’s office services supervisor was insufficient to establish that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents [*2]annexed to plaintiff’s moving papers. In any event, plaintiff failed to annex to its motion for summary judgment the claim forms upon which it sought to recover. Accordingly, 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]; AB Med. Servs, PLLC v Lancer Ins. Co., 13 Misc 3d 139[A], 2006 NY Slip Op 52241[U] [App Term, 2d & 11th Jud Dists 2006]; A.B. Med. Servs., PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists 2005]).

With respect to the merits of defendant’s cross motion for summary judgment, the court below correctly denied same since defendant failed to demonstrate as a matter of law its entitlement to summary judgment. Defendant did not demonstrate that plaintiff’s causes of action were premature (cf. Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). Further, contrary to defendant’s contention, the parties’ so-ordered stipulation does not entitle defendant to summary judgment since plaintiff’s time to provide the verified responses to defendant’s discovery demands was stayed during the pendency of plaintiff’s motion for summary judgment (see CPLR 3214 [b]; Reilly v Oakwood Hgts. Community Church, 269 AD2d 582 [2000]; John Eric Jacoby, M.D., P. C. v Loper Assocs., 249 AD2d 277 [1998]; cf. Vista Surgical Supplies Inc. v Progressive Cas. Ins. Co., 13 Misc 3d 141[A], 2006 NY Slip Op 52267[U] [App Term, 2d & 11th Jud Dists 2006] [so-ordered stipulation provided that the time to furnish discovery could not be extended without leave of court]).

In light of the foregoing, we do not reach defendant’s remaining contentions.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

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

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), dated July 13, 2006. The order denied the petition to vacate a master arbitrator’s award.

Order modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find that the determination of the master arbitrator upholding the arbitrator’s award, which denied petitioner’s claims for first-party no-fault benefits, had a rational basis and was not arbitrary and capricious (see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633 [2008]; Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see generally Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Indeed, until this court rendered its decision in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007], supra), there was no settled appellate law regarding an insurer’s reduction of the amount of fees charged by a licensed acupuncturist for acupuncture services rendered. Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon [*2]denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008

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 (Diane A. Lebedeff, J.), dated November 1, 2006. The order denied defendant’s motion to dismiss the complaint and awarded plaintiff $50 in costs.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, defendant moved to compel the appearance for deposition of, among others, plaintiff’s treating physician. The court granted the motion to the extent that plaintiff was ordered to provide the treating physician by a date certain. The order further provided that the court would dismiss the complaint if plaintiff failed to comply with the order. Defendant then served a notice for deposition, dated April 7, 2006, for a deposition scheduled for April 12, 2006 at 3:00 P.M. The deposition did not go forward, and defendant moved for an order, pursuant to the prior order, to dismiss the complaint. Defendant now appeals from the order denying its motion to dismiss the complaint and awarding plaintiff $50 in costs.

In support of defendant’s motion to dismiss the complaint, defendant did not offer the affidavit of a person with personal knowledge of the facts. The affirmation by defendant’s attorney, stating that plaintiff failed to produce plaintiff’s physician for the deposition, was not based on personal knowledge of the facts which he alleged, and, as such, is based upon unsubstantiated hearsay and has no probative value (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Said v Abarn Equip. Corp., 195 Misc 2d 451, 452 [2002]). Accordingly, defendant’s motion was properly denied (see Stephen Fogel Psychological, P.C. v Progressive Cas. Inc. Co., 35 AD3d 720 [2006]). [*2]

With respect to the court’s award to plaintiff of costs in the sum of $50, we note that CCA 1906 (a) vests the court with the discretion to impose costs not in excess of $50 upon the granting or denying of a motion. Under the circumstances presented, the imposition of costs was not an improvident exercise of the court’s discretion (see e.g. Bronxborough Med., P.C. v Travelers Ins. Co., 16 Misc 3d 132[A], 2007 NY Slip Op 51485[U] [App Term, 2d & 11th Jud Dists 2007]).

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

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

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: April 29, 2008

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 (Diane A. Lebedeff, J.), entered September 15, 2006. The order granted defendant’s motion for a protective order striking plaintiff’s notice to admit.

Order modified by providing that defendant’s motion for a protective order is granted only to the extent of striking items 4, 7 and 8 of plaintiff’s notice to admit; as so modified, affirmed without costs, and defendant is directed to respond to items 1, 2, 3, 5 and 6 of the notice to admit within 20 days after service upon it of a copy of the order entered hereon, with notice of entry.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for a protective order striking plaintiff’s notice to admit. The court below granted defendant’s motion in its entirety, and this appeal by plaintiff ensued.

“The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” (Lolly v Brookdale Univ. Hosp. & Med. Ctr., 45 AD3d 537, 537 [2007]). “Through the use of a notice to admit, a party can request another party to admit stated facts or the genuineness of a document, where the party requesting the admission reasonably believes there can be no substantial dispute at the trial. . . and [where the matters] are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry'” (Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term, 2d & 11th Jud Dists 2007], quoting CPLR 3123 [a]).

In the instant case, the admissions sought by plaintiff in items 1 and 3, regarding the genuineness of defendant’s NF-10 denials, are proper in light of this court’s decision in Bajaj v General Assur. (id.). Similarly, no protective order is necessary with regard to the admissions [*2]sought by plaintiff in items 2, 5 and 6, that there has been no payment made with regard to a particular bill and that defendant received the two claim forms referenced in the attached denials, because these admissions had already been made by defendant in the attached denial of claim forms. In view of the foregoing, it was an improvident exercise of the lower court’s discretion to grant defendant’s motion for a protective order striking items 1, 2, 3, 5 and 6 of plaintiff’s notice to admit.

Item 4, seeking an admission that a sum remains outstanding, is improper in that it is imprecisely worded and could be read as a conclusion of an ultimate fact (see Villa v New York City Hous. Auth., 107 AD2d 619 [1985]). Item 7 seeks an admission that defendant received an attached claim form on or about a specified date, which fact defendant had not previously acknowledged through its issuance of a statutory denial of claim form. In the absence of such prior acknowledgment by defendant, that defendant received such claim form is “an ultimate or conclusory fact which [is] an integral part of the plaintiff’s prima facie case”, and should not be determined on the basis of a notice to admit (Scavuzzo v City of New York, 47 AD3d 793, 795 [2008]; see e.g. Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Upon our review of the record and the arguments raised on appeal, we do not find that it was an improvident exercise of the lower court’s discretion to strike item 8 of plaintiff’s notice to admit, seeking an admission that defendant received plaintiff’s assignment of benefits on or about a specified date (see Lolly, 45 AD3d at 537).

Accordingly, we modify the order by providing that defendant’s motion for a protective order is granted only to the extent of striking items 4, 7 and 8 in plaintiff’s notice to admit.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008

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 (Kathryn E. Freed, J.), entered August 9, 2006. The order, insofar as appealed from, granted defendant’s motion to the extent of ordering plaintiff to produce plaintiff’s assignor’s treating physician for an examination before trial and denied plaintiff’s cross motion for a protective order.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for an order compelling examinations before trial of plaintiff, plaintiff’s assignor and plaintiff’s assignor’s treating physician, and plaintiff cross-moved for a protective order. The court below granted defendant’s motion to the extent of ordering plaintiff to produce plaintiff’s assignor’s treating physician for an examination before trial and denied plaintiff’s cross motion for a protective order. The instant appeal by plaintiff ensued.

CPLR 3101 (a) provides that “there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The court has broad discretion in determining what is material and necessary (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]), and “the burden of establishing any right to protection [from disclosure] is on the party asserting it . . .” (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]).

In the instant case, the bald conclusory assertion by plaintiff’s counsel that an examination before trial of the assignor’s treating physician would be useless in proving defendant’s defense was insufficient to establish plaintiff’s entitlement to a protective order (see Dynamic Med. Communications v Norwest Trade Printers, 257 AD2d 524 [1999]; Ocean to [*2]Ocean Seafood Sales v Trans-O-Fish & Seafood Co., 138 AD2d 265 [1988]; Boylin v Eagle Telephonics, 130 AD2d 538 [1987]). Accordingly, the court below did not improvidently exercise its discretion in granting defendant’s motion to the
extent of compelling plaintiff to produce plaintiff’s assignor’s treating physician for an examination before trial and denying plaintiff’s cross motion for a protective order.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008

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 (Kathryn E. Freed, J.), entered July 7, 2006. The order denied plaintiff’s motion for summary judgment.Order affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a plaintiff 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 is 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 2003]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended NF-3 form to defendant. However, inasmuch as defendant, in its opposition papers, acknowledged receipt of the claim on December 30, 2004, both in the affidavit of defendant’s claims representative as well as in its denial of claim form, the deficiency in plaintiff’s moving papers concerning proof of mailing of the claim in question was cured (see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). The burden, therefore, shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition, defendant established that it timely denied plaintiff’s claim on the ground of lack of medical necessity (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Inasmuch as the affirmed peer review report annexed to defendant’s opposing papers sets forth a
sufficient factual basis and medical rationale to demonstrate the existence of an issue of fact as to medical necessity (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], [*2]2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]), plaintiff’s motion for summary judgment was properly denied (id.).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008