Alur Med. Supply, Inc. v Country-Wide Ins. Co. (2008 NY Slip Op 51234(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, Queens County (Lee A. Mayersohn, J.), entered April 12, 2007, deemed from a judgment of the same court entered May 4, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 12, 2007 order which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,124.

Judgment reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for, inter alia, summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant argues that the affidavit by plaintiff’s employee, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of 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 billing manager was insufficient to establish that she 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 (see Bath Med. Supply v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; 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 is denied. [*2]

Turning to the merits of defendant’s cross motion for summary judgment, defendant based its denial of plaintiff’s claim upon an affirmed report of an independent medical examination (IME). The IME report did not address the necessity for medical supplies and, therefore, did not establish prima facie that the supplies provided by plaintiff were not medically necessary (cf. Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 19 Misc 3d 130[A], 2008 NY Slip Op 50534[U] [App Term, 2d & 11th Jud Dists 2008]; Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 139[A], 2008 NY Slip Op 50327[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant is not entitled to summary judgment upon its cross motion.

Pesce, P.J.,and Golia,J., concur

Steinhardt, J., concurs in a separate memorandum.

Steinhardt, J., concurs in the result in the following memorandum:

While I agree with the result reached by the majority, I do so for other reasons. I find that defendant has come forward with triable issues of fact sufficient to defeat plaintiff’s motion for summary judgment.
Decision Date: June 12, 2008