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 March 18, 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’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. The court denied plaintiff’s motion on the ground that plaintiff failed to make a prima facie case because, among other things, plaintiff did not lay a sufficient foundation to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form. 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., ___ Misc 3d ___,
2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied. [*2]

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 2, 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 (Ellen M. Spodek, J.), entered March 24, 2005. 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.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied the petitioner’s claims for first-party no-fault benefits (see 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).

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: February 27, 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 October 20, 2005. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s 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 ____ [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., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for summary judgment is denied.
Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: February 27, 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 December 8, 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’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 27, 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 December 1, 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’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. 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 [*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. 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, Jan. 12, 2007]; 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 27, 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 November 23, 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’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. [*2]
Decision Date: February 27, 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 November 23, 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’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 27, 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 (Gerald Dunbar, J.), entered October 28, 2005, deemed an appeal from the judgment entered March 26, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the order entered November 10, 2005 which granted plaintiff’s unopposed cross motion for summary judgment, awarded plaintiff the principal sum of $12,125.52.

Appeal dismissed.

Since defendant failed to submit written opposition to plaintiff’s cross motion seeking summary judgment, that branch of the order which granted plaintiff’s cross motion for summary judgment was entered on default and defendant is not aggrieved thereby (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 the judgment, which was entered pursuant to said order, is dismissed.

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

Golia,J., concurs in a separate memorandum.

Golia, J., concurs in the following memorandum:

I concur with my colleagues in their ultimate determination that a default in responding to a motion must result in a denial of appellate review.

I, nevertheless, wish to address a misconception of the law in the decision and order of [*2]the lower court which granted summary judgment in favor of the plaintiff upon the default of the defendant in not responding to plaintiff’s motion.

The lower court initially held that plaintiff proved its prima facie case by means of establishing the timely receipt of the claims by submission of the defendant’s NF-10 denial forms.

That court then addressed the sufficiency of the NF-10 denial form and found that the “NF-10 is not specific and requires one to consider other documents not
included.” Inasmuch as the NF-10 denial specifically stated that the fees charged were
in “excess of the no-fault schedule,” it would seem to indicate that the “other documents” to which the lower court refers, is the no-fault fee schedule which allegedly was not attached to the defendant’s NF-10.

The question then presented is whether or not the failure to attach a copy of the no-fault fee schedule permits a court to grant a money judgment allegedly in excess of the amount permitted by Insurance Department no-fault regulations. I believe that it does not. In support, I look to CPLR 4511 (a) which requires that “[e]very court shall take judicial notice without request . . . of the official compilation of codes, rules and regulations of the state . . .” (see also People v Wiley, 59 Misc 2d 519 [1969]; People v Stuck, 54 Misc 2d 811 [1967]). These of course, include the regulations of the New York State Insurance Department.

Clearly, the lower court had no alternative but to take judicial notice of the Insurance Department regulations. Those regulations require that medical procedures are to be billed at the “workers’ compensation” rate (see Insurance Law § 5108 [a]). In addition, that section prohibits any providers of professional health services from demanding or even requesting any payment in excess of the charges provided by that section. This is not to say that the lower court did not have the power to require additional proof or to conduct a hearing, if necessary, in order to establish that the charges were in accordance with the “workers’ compensation” rate. I conclude what that court did not have the authority to do was to simply ignore those regulations and to grant judgment to the plaintiff for an amount which may be in excess of the amount permitted by the regulations.

An interesting and instructive decision concerning the history of the extent of proof required on issues involving judicial notice was written by Judge Pinto of the City Magistrate Court of New York, Rockaway Court, Borough of Queens in People v Lipoff (181 Misc 618 [1943]). In that case, a defendant was charged with selling meats above the ceiling prices set in a regulation by the U.S. Office of Price Administration.

Notwithstanding the prosecutor failing to provide the proper certification, that Judge held in 1943 that “courts must adopt and apply modern and common sense rules” and thereupon took judicial notice of the federal regulation (People v Lipoff, 181 Misc at 622).

In the year 2007, we can conclude that it is still the “modern and common sense rule” for a court to be satisfied that the dollar amount awarded in a judgment is not in excess of the dollar amount enumerated by the regulation which permitted the judgment in the first instance.
Decision Date: February 27, 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 May 2, 2005, deemed an appeal from a judgment entered on September 22, 2005 (CPLR 5501 [c]). The judgment, entered pursuant to the order entered May 2, 2005 which denied plaintiff’s motion for partial summary judgment in the sum of $3,268.58 and granted defendant’s cross motion for summary judgment, dismissed the complaint.

Judgment reversed without costs, order dated May 2, 2005 insofar as it granted defendant’s cross motion for summary judgment vacated, defendant’s cross motion for summary judgment denied and complaint reinstated.

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 of 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 [*2]
Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied.

With respect to defendant’s cross motion for summary judgment, however, we are of the opinion that the court erred in granting the cross motion and dismissing the complaint, since, as plaintiff asserted in opposition to the cross motion, defendant did not submit evidence from someone with personal knowledge of the timely mailing of its claim denials (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In the absence of proof of timely mailing, there remains an issue of fact as to whether defendant was precluded from interposing its defense of lack of medical necessity. Accordingly, dismissal was not warranted.

We pass on no other issues.

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

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to affirm the judgment in the following memorandum:

In my opinion, the judgment should be affirmed.

While I am in agreement with the majority that plaintiff did not make out its prima facie entitlement to judgment as a matter of law, and that the court below properly denied its motion for partial summary judgment, I do not agree with its conclusion with respect to defendant’s cross motion. In my opinion, based upon a review of the record,
the papers submitted by defendant in support of its cross motion for summary judgment established its prima facie entitlement to such relief. Inasmuch as plaintiff, in
opposition thereto, failed to proffer sufficient evidence in admissible form to raise a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]), summary judgment in favor of defendant was warranted.
Decision Date: February 27, 2007