May 14, 2004

A.B. Med. Servs. v Country-Wide Ins. Co. (2004 NY Slip Op 50535(U))

Headnote

The court considered the motion for partial summary judgment in the amount of $11,420.05 filed by plaintiffs in an action to recover first-party no-fault benefits, statutory interest, and attorney's fees for health services provided to their assignor. The main issue was whether the plaintiffs had provided the defendant with properly completed claim forms. The court decided to affirm the order denying the motion for partial summary judgment, stating that the affidavit submitted by plaintiffs' billing manager was insufficient to establish that the defendant had been provided with properly completed claim forms. Therefore, the plaintiffs failed to make a prima facie showing of entitlement to judgment as a matter of law. The decision was made on May 14, 2004.

Reported in New York Official Reports at A.B. Med. Servs. v Country-Wide Ins. Co. (2004 NY Slip Op 50535(U))

A.B. Med. Servs. v Country-Wide Ins. Co. (2004 NY Slip Op 50535(U)) [*1]

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

2004 NY Slip Op 50535(U)

Decided on May 14, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:PESCE. P.J., GOLIA and RIOS, JJ.
NO. 2003-474 K C

A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. DANIEL KIM’S ACUPUNCTURE P.C. G.A. PHYSICAL THERAPY P.C. a/a/o NELSON VARGAS, Appellants,
against
COUNTRY-WIDE INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered February 25, 2003, denying their motion for partial summary judgment in the sum of $11,420.05.

Order unanimously affirmed without costs.

In or about June 2002, plaintiffs commenced this action to recover first-party no-fault benefits, as well as statutory interest and attorney’s fees, for health services provided
to their assignor pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved
for partial summary judgment in the amount of $11,420.05, which was comprised of $8,144.25 worth of claims (consisting of 12 bills), $3,210.80 worth of claims (consisting
of 9 bills), and a $65 claim. Defendant opposed the motion and by order entered
February 25, 2003, the court below denied said motion.

In support of its motion, plaintiffs submitted an affidavit in which Bella Safir states that she is the billing manager for “plaintiff.” 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, [*2]
Safir’s 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, March 18, 2004 [App Term, 9th & 10th Jud Dists]). Accordingly, plaintiffs have failed to make a prima facie showing of entitlement to 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 14, 2004