May 25, 2004

A.B. Med. Servs. v Am. Tr. Ins. Co. (2004 NY Slip Op 50515(U))

Headnote

The court considered the appeal by the plaintiffs from an order denying their motion for summary judgment in a case involving a claim for first-party no-fault benefits for medical services rendered to their assignor. The main issue was whether the plaintiffs provided the defendant with properly completed claim forms, as required by Insurance Law § 5101 et seq. In support of their motion, the plaintiffs submitted an affidavit from the practice and billing manager of one of the plaintiffs, but the affidavit did not specify for which plaintiff she was the billing manager, making it insufficient to establish that the plaintiffs provided the defendant with properly completed claim forms. As a result, the plaintiffs failed to make a prima facie showing of entitlement to summary judgment, and the order denying their motion was affirmed.

Reported in New York Official Reports at A.B. Med. Servs. v Am. Tr. Ins. Co. (2004 NY Slip Op 50515(U))

A.B. Med. Servs. v Am. Tr. Ins. Co. (2004 NY Slip Op 50515(U)) [*1]

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

2004 NY Slip Op 50515(U)

Decided on May 25, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2003-1070 K C

A.B. MEDICAL SERVICES PLLC DANIEL KIM’S ACUPUNCTURE P.C. a/a/o Jean L. Pierre, Appellants,
against
AMERICAN TRANSIT INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (D. Silber, J.),

entered May 14, 2003, denying their motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiffs commenced this action to recover first-party no-fault benefits for medical services rendered to their assignor, as well as statutory interest and attorney’s
fees, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved for summary judgment, which motion was denied by order of the court below.

In support of their motion, plaintiffs submitted an affidavit in which Bella Safir states that she is the “practice and billing manager” and “an officer of plaintiff,” even though there are two distinct plaintiffs in this matter which have different business addresses. The affidavit does not indicate for which plaintiff she is the billing manager, and this court cannot assume that she is acting on behalf of one particular plaintiff, or on behalf of all of the plaintiffs. Consequently, this affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Apr. 13, 2004 [*2][App Term, 9th & 10th Jud Dists]).

Accordingly, plaintiffs have failed to make a prima facie showing of entitlement to summary judgment as a matter of law (cf. Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]).
Decision Date: May 25, 2004