February 5, 2010

A.B. Med. Servs., PLLC v Geico Cas. Ins. Co. (2010 NY Slip Op 50224(U))

Headnote

The court considered an appeal from a provider seeking to recover assigned first-party no-fault benefits, where the plaintiff had moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. The District Court had denied the branch of plaintiff's motion seeking summary judgment, and upon reargument, denied the branch seeking an order limiting issues of fact for trial. The main issue decided was whether the plaintiff had made a prima facie showing of entitlement to summary judgment, and the court held that they had failed to do so. Consequently, the court affirmed the District Court's denial of the motion seeking a determination pursuant to CPLR 3212 (g).

Reported in New York Official Reports at A.B. Med. Servs., PLLC v Geico Cas. Ins. Co. (2010 NY Slip Op 50224(U))

A.B. Med. Servs., PLLC v Geico Cas. Ins. Co. (2010 NY Slip Op 50224(U)) [*1]

A.B. Med. Servs., PLLC v Geico Cas. Ins. Co.

2010 NY Slip Op 50224(U) [26 Misc 3d 138(A)]

Decided on February 5, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 5, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2009-950 N C.

A.B. Medical Services, PLLC a/a/o VERDITH ST. PREUX, Appellant,
against
Geico Casualty Insurance Co., Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), dated March 6, 2009. The order, insofar as appealed from, upon granting plaintiff’s motion for leave to reargue the branch of plaintiff’s prior motion which sought to limit the issues to be tried pursuant to CPLR 3212 (g), denied that branch of plaintiff’s prior motion.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. Defendant submitted opposition papers. The District Court denied the branch of plaintiff’s motion seeking summary judgment. Thereafter, plaintiff moved for leave to reargue, asserting that the court had not rendered a decision with regard to the branch of its motion which sought an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. Defendant submitted opposition papers, and the District Court granted leave to reargue and, upon reargument, denied the branch of plaintiff’s motion which sought an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. The instant appeal by plaintiff ensued.

Upon a review of the record, we find that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as the affidavit of its billing manager failed to establish that the documents annexed to plaintiff’s 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, we find no basis to disturb the District Court’s denial of the branch of plaintiff’s motion seeking a determination pursuant to CPLR 3212 (g) that plaintiff had, inter alia, established its prima facie case.

Accordingly, the order, insofar as appealed from, is affirmed.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: February 05, 2010