A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 23, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs and, upon searching the record, defendant’s cross motion for summary judgment dismissing the action granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. The court denied both motions and plaintiff appeals from so much of the order as denied its motion for summary judgment.

On appeal, defendant asserts that the affidavit by plaintiff’s owner, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s owner was insufficient to establish that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Bath Med. Supply, [*2]Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Although defendant did not cross-appeal from so much of the order as denied its cross motion for summary judgment dismissing the action, pursuant to this Court’s authority to search the record and grant summary judgment to a non-appealing party, the cross motion for summary judgment should be granted (CPLR 3212 [b]; see e.g. Dunham v Hilco Constr. Co., 89 NY2d 425, 429-230 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]; Ocean Diagnostic Imaging, P.C. v Nationwide Mut. Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50477[U] [App Term, 2d & 11th Jud Dists]). Defendant’s peer review report established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted, thereby entitling defendant to the relief it sought below (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists] [“(T)he insurer . . . if not precluded, may rebut the inference (of medical necessity) by proof in admissible form establishing that the health benefits were not medically necessary. . . . If not refuted by the no-fault benefits claimant, such proof may entitle the insurer to summary judgment”]).

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
A KHODADADI RADIOLOGY, P.C.
a/a/o CARLOS GOMEZ,

Appellant,

-against-
NY CENTRAL MUTUAL FIRE INS. CO.,

Respondent. [*3]

Golia, J.P., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 03, 2007