June 25, 2009

Al Correa, Neurologist, P.C. v Progressive Northeastern Ins. Co. (2009 NY Slip Op 51356(U))

Headnote

The relevant facts of the case were that the plaintiff, a medical provider, was seeking to recover first-party no-fault benefits from the defendant insurance company. The plaintiff moved for summary judgment and the defendant cross-moved for summary judgment dismissing the complaint. The District Court denied the plaintiff's motion on the grounds that the affidavit by the plaintiff's billing manager did not establish that the documents annexed to plaintiff's motion were admissible as business records. The court also granted the defendant's cross motion for summary judgment as to plaintiff's claim for $230.09 and denied the defendant's cross motion for summary judgment as to plaintiff's claim for $1,572.26. The main issue that was decided in this case was whether the plaintiff had made a prima facie showing of its entitlement to summary judgment. The holding was that the plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by the plaintiff's billing manager did not establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518. As a result, the court affirmed the lower court's decision to deny the plaintiff's motion for summary judgment with respect to the claim for $1,572.26.

Reported in New York Official Reports at Al Correa, Neurologist, P.C. v Progressive Northeastern Ins. Co. (2009 NY Slip Op 51356(U))

Al Correa, Neurologist, P.C. v Progressive Northeastern Ins. Co. (2009 NY Slip Op 51356(U)) [*1]

Al Correa, Neurologist, P.C. v Progressive Northeastern Ins. Co.

2009 NY Slip Op 51356(U) [24 Misc 3d 131(A)]

Decided on June 25, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., MOLIA and NICOLAI, JJ
2008-1792 N C.

Al Correa, Neurologist, P.C. a/a/o ALICIA CAMPBELL, Appellant,
against
Progressive Northeastern Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), entered July 21, 2008. The order, insofar as appealed from as limited by the brief, denied so much of plaintiff’s motion as sought summary judgment with respect to plaintiff’s claim for $1,572.26.

Order, insofar as appealed from, affirmed with $10 costs.

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 dismissing the complaint. The District Court denied plaintiff’s motion, holding that the affidavit by plaintiff’s biller failed to establish a prima facie case because it did not demonstrate that the documents annexed to plaintiff’s motion were admissible as business records. The court also granted defendant’s cross motion for summary judgment as to plaintiff’s claim for $230.09 and denied defendant’s cross motion for summary judgment as to plaintiff’s claim for $1,572.26. Plaintiff appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment with respect to the claim for $1,572.26.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; 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]). Plaintiff’s remaining contentions are wholly without merit. Consequently, so much of plaintiff’s motion as sought [*2]summary judgment with respect to the claim for $1,572.26 was properly denied.

We decline defendant’s request to search the record and award it summary judgment dismissing the complaint as to the claim for $1,572.26 (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Rudolph, P.J., Molia and Nicolai, JJ., concur.
Decision Date: June 25, 2009