June 18, 2009

A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 51261(U))

Headnote

The relevant facts the court considered in this case were that the plaintiffs, medical service providers, were seeking to recover first-party no-fault benefits from the defendant insurance company. The defendant objected to the admission of documents attached to the plaintiffs’ moving papers as business records, and also argued that the matter should be held in abeyance pending an application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law. The court had to decide whether the documents submitted by the plaintiffs were admissible as business records and whether the matter should be held in abeyance pending a determination by the Workers' Compensation Board. The holding of the court was that the plaintiffs did not establish a prima facie case for entitlement to summary judgment, as the documents submitted were not admissible, and therefore their motion for summary judgment was denied. The judgment awarding the plaintiffs a sum of $19,357.03 was reversed, and the order granting their motion for summary judgment was vacated.

Reported in New York Official Reports at A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 51261(U))

A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 51261(U)) [*1]

A.B. Med. Servs., PLLC v American Tr. Ins. Co.

2009 NY Slip Op 51261(U) [24 Misc 3d 127(A)]

Decided on June 18, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., TANENBAUM and LaCAVA, JJ
2008-217 N C.

A.B. Medical Services, PLLC, LVOV ACUPUNCTURE, P.C. and RW HEALTH PLUS CHIROPRACTIC, P.C. a/a/o GESNER TOUSSAINT, Respondents,
against
American Transit Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, Third District (Robert H. Spergel, J.), dated September 4, 2007, deemed from a judgment of the same court entered September 11, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the September 4, 2007 order granting plaintiffs’ motion for summary judgment, awarded plaintiffs the sum of $19,357.03.

Judgment reversed without costs, order dated September 4, 2007 granting plaintiffs’ motion for summary judgment vacated, and plaintiffs’ motion for summary judgment denied.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that the affidavit of plaintiffs’ employee failed to lay a proper foundation for the admission of the documents attached to plaintiffs’ moving papers as business records pursuant to CPLR 4518 (a), and that the matter should be held in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. By order dated September 4, 2007, the District Court granted plaintiffs’ motion for summary judgment. A judgment awarding plaintiff the sum of $19,357.03 was entered on September 11, 2007. Defendant subsequently appealed from the September 4, 2007 order, which appeal we [*2]deem to be from the judgment (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

To the extent that defendant sought to have the District Court search the record and hold the matter in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law, the papers that defendant submitted in opposition to plaintiffs’ motion for summary judgment did not establish sufficient facts to warrant such relief (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]; Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]).

Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ billing manager failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008], Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiffs’ motion for summary judgment should have been denied.

Accordingly, the judgment is reversed, the order granting plaintiffs’ motion for summary judgment is vacated, and the motion is denied.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: June 18, 2009