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 8, 2005. The order, insofar as appealed from, denied plaintiff’s 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 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 of plaintiff’s corporate officer was of no probative value because it did not proffer facts in admissible form. Plaintiff appeals from so much of the order as denied its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said corporate officer possessed personal knowledge of plaintiff’s business 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]). Accordingly, the order, insofar as it denied plaintiff’s motion for summary judgment, should be affirmed.

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

Weston Patterson, J.P., Golia and Belen, JJ., concur. [*2]
Decision Date: July 12, 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 (Edgar G. Walker, J.), entered December 9, 2004. The order denied plaintiff’s motion for summary judgment and awarded defendant $50 costs.

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 did not proffer facts in admissible form so as to establish plaintiff’s prima facie entitlement to judgment as a matter of law. The court denied plaintiff’s motion on the ground that the affidavit of plaintiff’s corporate officer was legally insufficient to establish plaintiff’s prima facie case and awarded defendant $50 costs. The instant appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s corporate officer was insufficient to establish [*2]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.

To the extent the court awarded defendant costs in the sum of $50, 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 a not an improvident exercise of the court’s discretion (see PDG Psychological P.C. v Eveready Ins. Co., 13 Misc 3d 143[A], 2006 NY Slip Op 52305[U] [App Term, 2d & 11th Jud Dists]).

We note that during oral argument, this court was advised that plaintiff moved for reargument of the subject motion, and the court below, in a subsequent decision/order dated November 16, 2006, granted reargument, and upon reargument, substantially adhered to its original determination. Thus, pursuant to CPLR 5517 (a), this appeal is unaffected by the subsequent order. Moreover, we have not reviewed the subsequent decision/order pursuant to CPLR 5517 (b) because the record on appeal did not include the motion papers upon which the decision/order was based (see Matter of Donato v Board of Educ. of Plainview-Old Bethpage Cent. School Dist., 286 AD2d 388 [2001]; Matter of Merendino v Herman, 15 AD2d 818 [1962]; NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2004]).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: July 12, 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 (Bernard J. Graham, J.), entered January 18, 2006. The order, insofar as appealed from, denied plaintiff’s 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 moved for summary judgment and defendant cross-moved for summary judgment. The court below denied both motions on the ground that an issue of fact existed as to whether the insurance policy issued by defendant contained coverage for bodily injury. Plaintiff appeals from so much of the order as denied its motion for summary judgment.

In Zappone v Home Ins. Co. (55 NY2d 131, 135-136 [1982]), the Court of Appeals noted that an untimely denial of coverage does not “bring within the policy a liability incurred neither by the person insured nor in the vehicle insured, for to do so would be to impose liability upon the carrier for which no premium had ever been received by it and to give no significance whatsoever to the fact that automobile insurance is a contract with a named person as to a specified vehicle.” Thus, the timeliness of the denial of claim form issued by the instant defendant is irrelevant to the extent defendant’s defense is predicated upon the fact that the insurance policy issued by defendant covered property damage only and it did not provide coverage for no-fault benefits (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Moreover, contrary to plaintiff’s contention, under the circumstances, defendant’s opposing papers were sufficient to demonstrate the existence of an issue of fact as to whether the [*2]insurance policy issued by defendant obligated defendant to pay claims for no-fault benefits (see Zappone v Home Ins. Co., 55 NY2d 131, supra; Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the order is affirmed.

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: July 12, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Larry S. Schachner, J.), entered April 3, 2006, which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment in the principal sum of $3,360.94.

Per Curiam.

Order (Larry S. Schachner, J.), entered April 3, 2006, modified to deny plaintiff’s cross motion for summary judgment, and as modified, affirmed, without costs. The matter is remanded for further proceedings consistent with this decision.

In this action to recover assigned first party no-fault benefits, the drastic sanction of precluding defendant from asserting its defense of exhaustion of policy limits was unwarranted in the absence of a showing that defendant’s single failure to comply with the parties’ discovery stipulation was willful and contumacious (see CPLR 3126; Villega v New York City Hous. Auth., 231 AD2d 404 [1996]). Since triable issues exists as to whether the policy limits had been exhausted at the time plaintiff submitted its claims, defendant is directed to comply with all outstanding discovery relevant to the issue of exhaustion of policy limits.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: July 9, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Francis Alessandro, J.), entered January 25, 2006, which granted plaintiff’s motion for summary judgment in the principal amount of $4,126.93.

Per Curiam.

Order (Francis Alessandro, J.), entered January 25, 2006, reversed, with $10 costs, motion denied, and matter remanded for further proceedings.

In this action to recover assigned first party no-fault benefits, defendant’s submissions in opposition to plaintiffs’ motion for summary judgment sufficed to raise triable issues of fact as to whether the “alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Thus, plaintiff’s motion for summary judgment should have been denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: July 9, 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 23, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs and, upon searching the record, defendant’s cross motion for summary judgment dismissing the action granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. The court denied both motions and plaintiff appeals from so much of the order as denied its motion for summary judgment.

On appeal, defendant asserts that the affidavit by plaintiff’s owner, 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. We agree. The affidavit submitted by plaintiff’s owner 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 annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Bath Med. Supply, [*2]Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th 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, plaintiff’s motion for summary judgment was properly denied (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Although defendant did not cross-appeal from so much of the order as denied its cross motion for summary judgment dismissing the action, pursuant to this Court’s authority to search the record and grant summary judgment to a non-appealing party, the cross motion for summary judgment should be granted (CPLR 3212 [b]; see e.g. Dunham v Hilco Constr. Co., 89 NY2d 425, 429-230 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]; Ocean Diagnostic Imaging, P.C. v Nationwide Mut. Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50477[U] [App Term, 2d & 11th Jud Dists]). Defendant’s peer review report established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted, thereby entitling defendant to the relief it sought below (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists] [“(T)he insurer . . . if not precluded, may rebut the inference (of medical necessity) by proof in admissible form establishing that the health benefits were not medically necessary. . . . If not refuted by the no-fault benefits claimant, such proof may entitle the insurer to summary judgment”]).

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
A KHODADADI RADIOLOGY, P.C.
a/a/o CARLOS GOMEZ,

Appellant,

-against-
NY CENTRAL MUTUAL FIRE INS. CO.,

Respondent. [*3]

Golia, J.P., 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 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.
Decision Date: July 03, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

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

Per Curiam.

Order (Eileen A. Rakower, J.), dated August 15, 2005, reversed, with $10 costs, and plaintiffs’ motion for summary judgment granted in the principal amount of $21,913.39.

In opposition to plaintiffs’ prima facie showing of entitlement to summary judgment, defendant failed to raise any triable issues of fact. Inasmuch as it is undisputed that defendant did not timely deny the subject claims within 30 days of receipt thereof (see 11 NYCRR 65-3.8 [c]), it is precluded from asserting any statutory defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), defenses predicated upon breach of conditions precedent or policy exclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), or a defense of provider fraud based on fraudulent billing practices (see Valley Psychological, P.C. v Liberty Mut. Ins. Co., 30 AD3d 718, 719 [2006]).

While an untimely denial does not preclude a defense based on lack of coverage, defendant’s documentary submissions were insufficient to raise issues of fact as to whether the alleged injuries arose out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199) or whether the accident was an intentional collision in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins., 293 AD2d 751 [2002]).

We have considered defendant’s remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: July 2, 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 (Bonnie P. Chaikin, J.), entered March 15, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for renewal of its prior 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 moved for summary judgment. The motion was supported by an affirmation of counsel, an affidavit of an officer of plaintiff, and various documents annexed thereto. In opposition to plaintiff’s motion, defendant argued, inter alia, that the affirmation of counsel was of no probative value and that the affidavit of plaintiff’s officer was insufficient to establish personal knowledge of the facts set forth therein. The court below denied plaintiff’s motion on this basis and plaintiff moved to renew the motion, annexing a more detailed affidavit of its officer. The court below denied the motion to renew on the ground that plaintiff failed to set forth any facts not previously known at the time of submission of the original motion. The instant appeal ensued.

CPLR 2221 (e) (2) provides that a motion for leave to renew a prior motion must be based upon “new facts not offered on the prior motion that would change the prior determination” or must show “that there has been a change in the law that would change the prior determination.” Furthermore, the motion papers must contain a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). In the instant case, plaintiff did not proffer a reasonable justification for its failure to present the facts upon which its [*2]renewal motion was based to the motion court on its prior motion for summary judgment (see T & B Port Washington, Inc. v McDonough, 34 AD3d 785 [2006]; Renna v Gullo, 19 AD3d 472 [2005]). Moreover, to the extent that plaintiff based its motion upon changes in the law, the cases proffered by plaintiff, which purportedly represented such changes, were neither dispositive of the issue of the sufficiency of plaintiff’s officer’s affidavit nor did they represent changes in the decisional law. Accordingly, the motion was properly denied.

We note that where there is no change in the decisional law, but a party is of the opinion that the motion court overlooked or misapprehended existing law, the proper vehicle is a motion to reargue (CPLR 2221 [d]). In the instant case, however, plaintiff’s motion, to the extent that it could be deemed to be seeking reargument, was untimely made.

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

Lippman, J., taking no part.
Decision Date: June 29, 2007