April 27, 2006

A.B. Med. Servs. PLLC v Allstate Ins. Co. (2006 NY Slip Op 50746(U))

Headnote

The court considered an appeal from an order of the Civil Court that denied the plaintiff's motion for partial summary judgment to recover $6,544.71 in first-party no-fault benefits for medical services rendered. The main issue decided was whether the health care providers had established a prima facie entitlement to partial summary judgment by proving the submission of claims, the amounts of losses sustained, and that payment of no-fault benefits was overdue. The court held that the affidavit provided by the medical billing manager of the plaintiff provider companies was insufficient to establish the plaintiff's prima facie entitlement to partial summary judgment. Therefore, the order of the court below was affirmed without costs.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v Allstate Ins. Co. (2006 NY Slip Op 50746(U))

A.B. Med. Servs. PLLC v Allstate Ins. Co. (2006 NY Slip Op 50746(U)) [*1]

A.B. Med. Servs. PLLC v Allstate Ins. Co.

2006 NY Slip Op 50746(U) [11 Misc 3d 143(A)]

Decided on April 27, 2006

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 27, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT:: PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-216 K C.

A.B. Medical Services PLLC D.A.V. Chiropractic P.C. Somun Acupuncture P.C. a/a/o Iris Merino, Biliulfa Merino, Appellants,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sarah L. Krauss, J.), entered December 7, 2004. The order denied plaintiffs’ motion for partial summary judgment seeking to recover the sum of $6,544.71.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to their assignors, plaintiffs health care providers failed to establish a prima facie entitlement to partial summary judgment by proof that they submitted the claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (cf. 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]). The affidavit of David Safir, wherein he states that he is “the medical billing manager of the plaintiff provider companies,” does not specify for which of the three plaintiffs he is the billing manager, and this court should not assume that he was acting on behalf of all three providers (see R.M. Med. P.C. v Lumbermans Mut. Cas. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50859[U] [App Term, 2d & 11th Jud Dists]). Indeed, Safir’s vague use of the word “companies” can also be construed to mean any two of the three provider companies. In these circumstances, the affidavit is insufficient to establish plaintiffs’ prima facie entitlement to partial [*2]summary judgment.

Accordingly, we affirm the order of the court below, which denied plaintiffs’ motion for partial summary judgment.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: April 27, 2006