June 2, 2009

A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2009 NY Slip Op 51130(U))

Headnote

The relevant facts in this case were that three medical service providers were seeking to recover first-party no-fault benefits from an insurance company. The providers moved for summary judgment, and the insurance company cross-moved for summary judgment to dismiss the complaint. The main issue decided by the court was whether the providers had made a prima facie showing of their entitlement to judgment as a matter of law, and whether the insurance company had submitted sufficient proof to support its defense that the providers were fraudulently incorporated. The holding of the court was that the providers failed to make a prima facie showing of their entitlement to summary judgment, as the affidavit submitted by their medical biller did not establish that the documents annexed to their moving papers were admissible. Therefore, the court affirmed the order denying the providers' motion for summary judgment.

Reported in New York Official Reports at A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2009 NY Slip Op 51130(U))

A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2009 NY Slip Op 51130(U)) [*1]

A.B. Med. Servs., PLLC v Country-Wide Ins. Co.

2009 NY Slip Op 51130(U) [23 Misc 3d 145(A)]

Decided on June 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : MOLIA, J.P., SCHEINKMAN and LaCAVA, JJ
2008-1440 N C.

A.B. Medical Services, PLLC, D.A.V. CHIROPRACTIC, P.C. and LVOV ACUPUNCTURE, P.C. a/a/o JOSHUA JACOBS, Appellants,
against
Country-Wide Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered June 11, 2008. The order, insofar as appealed from, denied plaintiffs’ motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant argued, inter alia, that plaintiffs did not make a prima facie showing of their entitlement to judgment as a matter of law. The District Court denied plaintiffs’ motion and defendant’s cross motion, finding that defendant had failed to submit sufficient proof to support its defense that plaintiffs are fraudulently incorporated, but that discovery was outstanding. The court directed plaintiffs to provide the discovery demanded by defendant. Plaintiffs appeal from so much of the order as denied their motion for summary judgment.

Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ medical biller 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 was properly denied, albeit on other grounds.

In light of the foregoing, the order, insofar as appealed from, is affirmed. [*2]

Molia, J.P., Scheinkman and LaCava, JJ., concur.
Decision Date: June 02, 2009