Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51862(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 (Alice Fisher Rubin, J.), entered March 13, 2007. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order modified by providing that defendant’s cross motion for summary judgment is denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s officer 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. Defendant also cross-moved for summary judgment on the ground that the action was premature because plaintiff failed to provide verification which defendant requested. The court denied plaintiff’s motion for summary judgment on the ground that plaintiff did not prove that the claim forms were mailed to defendant and granted defendant’s cross motion, finding that the action was premature. This appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s officer was insufficient to establish that said officer 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment [*2](see 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.

However, defendant failed to demonstrate that it timely mailed the verification and follow-up verification requests (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant’s cross motion failed to establish that plaintiff’s action was premature due to plaintiff’s failure to respond to timely verification requests (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; cf. Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). Accordingly, defendant’s cross motion for summary judgment should have been denied.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.

Golia, J., concurs in part and dissents in part and votes to affirm the order in the following memorandum:

I concur with the majority’s finding that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, in line with our holding in Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

However, I disagree and dissent from its determination that “defendant failed to demonstrate that it timely mailed the verification and follow-up verification requests . . . .” I find that the record demonstrates that defendant timely mailed the verification and
follow-up verification requests, all in accordance with my dissenting opinions in Uptodate Medical Services, P.C. v Lumbermens Mut. Cas. Co. (20 Misc 3d 135[A], 2008 NY Slip Op 51502[U] [App Term, 2d & 11th Jud Dists 2008]) and Horton Med., P.C. v New York Cent. Mut. Fire Ins. Co. (___ Misc 3d ___, 2008 NY Slip Op [App Term, 2d & 11th Jud Dists 2008]).

Inasmuch as plaintiff has failed to respond to those requests, defendant’s cross motion for summary judgment dismissing the action as premature was properly granted by the motion court (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).