July 24, 2009
Andromeda Med. Care, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51629(U))
https://www.beynensonlaw.com/case-law/andromeda-med-care-p-c-v-utica-mut-ins-co-2009-ny-slip-op51629u/
- Decided
- July 24, 2009
- Citation
- 2009 NY Slip Op 51629(U) · 24 Misc 3d 139(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Contrasted (cf., but see) in 1 and followed in 1 later decisions (see Cited by)
- Legal questions
- Claimant's prima facie case on motions (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Andromeda Med. Care, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51629(U))
| Andromeda Med. Care, P.C. v Utica Mut. Ins. Co. |
| 2009 NY Slip Op 51629(U) [24 Misc 3d 139(A)] |
| Decided on July 24, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-505 K C.
against
Utica Mutual Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered July 10, 2007. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion seeking summary judgment and sanctions.
Order modified by providing that defendant’s 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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion seeking summary judgment and sanctions.
The affidavits proffered by defendant in support of its motion for summary judgment were executed out of state. Although the affidavits were accompanied by documents that purported to be certificates of conformity, the certificates did not comply with Real Property Law § 299-a and, thus, the affidavits did not comply with CPLR 2309 (c) (see Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]). Since this defect was duly objected to by plaintiff in the Civil Court, defendant failed to introduce competent evidence in admissible form establishing its entitlement to summary judgment (see Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 127[A], 2008 NY Slip Op 50498[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant’s motion for summary judgment should have been denied (id.).
Contrary to plaintiff’s contention, plaintiff’s cross motion for summary judgment was properly denied. Plaintiff failed to establish that its billing records constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d [*2]& 11th Jud Dists 2006]). Plaintiff’s remaining contentions lack merit.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 24, 2009
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved
Held the provider's cross motion was properly denied because it failed to establish that its billing records were admissible under CPLR 4518.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50498(U)) FollowedThe insurer's Maryland affidavit lacked a certificate of conformity, and the provider preserved its admissibility objection.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51879(U)) FollowedThe provider's attorney affirmation failed to establish the admissibility of its claim forms or a prima facie entitlement to judgment.
Cited by
A label shows how the later decision treated this one.
- Andromeda Med. Care, P.C. v Utica Mut. Ins. Co. (2012 NY Slip Op 50344(U)) Contrasted (cf., but see)The insurer's biomechanical evidence established no causal connection between the accident and the assignors' claimed injuries.
- Art of Healing Medicine, P.C. v Amica Mut. Ins. Co. (2013 NY Slip Op 52014(U)) FollowedAn insurer's defective certificate of conformity for an out-of-state affidavit may be cured nunc pro tunc.
Similar decisions
- Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52601(U))The insured's affidavit denying any pedestrian collision established that the assignor's injuries did not arise out of an insured incident.
- Careplus Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 51132(U))The provider failed to establish its prima facie case because its affidavit did not establish admissibility of the supporting documents.
- Inwood Hill Med., P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51129(U))The providers' medical biller failed to establish admissibility of the supporting documents, defeating their motion for summary judgment.
- Union Physician Healthcare, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 50039(U))The provider failed to establish entitlement to summary judgment because its officer's affidavit lacked a business-record foundation.
- NY Comprehensive Med., P.C. v Maryland Cas. Co. (2008 NY Slip Op 50521(U))The provider's summary judgment cross motion failed because conflicting medical affirmations raised a triable issue of medical necessity.