June 18, 2009

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

https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-american-tr-ins-co-2009-ny-slip-op51261u/

Court: Appellate Term, Second Department
Decided: June 18, 2009
Citation: 2009 NY Slip Op 51261(U) · 24 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case Priority, other coverage
Legal questions: Claimant's prima facie case on motions · Workers' comp or other insurer primary (see the maps)

Cite as

A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 127(A), 2009 NY Slip Op 51261(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2009)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The providers failed to establish a prima facie case because their billing manager's affidavit did not establish admissible business records. In their action for assigned no-fault benefits, the providers obtained summary judgment and a resulting judgment. The insurer challenged the foundation for the documents attached to the moving papers under CPLR 4518 (a) and sought to hold the matter in abeyance for a Workers' Compensation Board determination. Its opposition papers did not establish sufficient facts to warrant that relief. The Appellate Term, Second Department, nevertheless reversed the judgment, vacated the order granting summary judgment, and denied the providers' motion because their supporting affidavit failed to establish the documents' admissibility.

Reported in New York Official Reports at 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This opinion is uncorrected and will not be published in the printed Official Reports.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

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved

Held the providers failed their prima facie case because their billing manager's affidavit did not establish that the annexed documents were admissible as business records under CPLR 4518.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category.

Workers' comp or other insurer primary

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Can a no-fault insurer deny or delay payment because workers’ compensation or another insurer is primary?

This decision: The insurer did not show that workers' compensation may apply; no referral, and the defense fails (rules on the question, but another ground decided the case)

Held the insurer's opposition papers did not establish sufficient facts to warrant holding the matter in abeyance pending a Workers' Compensation Board application.

Referred to WC BoardWC primary: claim failsWC defense not shownWC defense precludedFirst insurer must payNo coverage, not priorityThis decisionCites it or cited by itCited or followed

Of the 69 decisions on this question in the Second Department courts and the Court of Appeals, 10 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Westchester Med. Ctr. v American Tr. Ins. Co. (2009 NY Slip Op 01979) FollowedThe insurer's timely verification request and ensuing timely denial defeated the provider's motion for summary judgment.
Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Fortune Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50243(U)) FollowedAn insurer's acknowledgment of claim receipt does not concede the admissibility of the claim forms or the facts they contain.

Similar decisions

A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2009 NY Slip Op 51130(U))The providers' medical biller failed to establish admissibility of the supporting documents, defeating their motion for summary judgment.
A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50331(U))The insurer's evidence established a founded belief that the assignors' injuries did not arise from an insured incident.
A.B. Med. Servs. v Am. Tr. Ins. Co. (2004 NY Slip Op 50515(U))The providers failed to establish submission of completed claim forms because their billing affidavit did not identify the provider it covered.
A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NY Slip Op 51893(U))The insurer waived defenses based on incomplete assignments by failing to object within 10 days of receipt.
A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp. (2004 NY Slip Op 50779(U))The providers' billing-manager affidavit failed to establish their prima facie case because it did not identify which provider it covered.