February 26, 2008

Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50347(U))

Headnote

The relevant facts the court considered in this case involved a provider seeking to recover assigned first-party no-fault benefits from an insurance company. The main issue decided was whether the affidavit submitted by the plaintiff's corporate officer laid a proper foundation for the admission of documents annexed to the plaintiff's moving papers, and whether the insurance company demonstrated that it timely mailed the denial of claim forms and that there was no medical necessity for the equipment provided by the plaintiff. The holding of the court was that the affidavit submitted by the plaintiff's corporate officer was insufficient to establish a foundation for the admission of the documents, and that the insurance company demonstrated that it timely mailed the denial of claim forms and provided prima facie evidence of no medical necessity for the equipment. As a result, the court reversed the order, denied the plaintiff's motion for summary judgment, and granted the defendant's cross-motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50347(U))

Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50347(U)) [*1]

Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

2008 NY Slip Op 50347(U) [18 Misc 3d 139(A)]

Decided on February 26, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., and RIOS, J.
2006-1908 K C

Bath Medical Supply, Inc. a/a/o Stephanie Andre, Respondent,
against
New York Central Mutual Fire Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered August 4, 2006. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment denied and defendant’s cross motion for summary judgment dismissing the complaint granted.

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 summary judgment. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate officer, 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 make a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate 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. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. 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.

Defendant’s cross motion for summary judgment should have been granted. Defendant demonstrated that it timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed [*2](Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]), and defendant’s affirmed peer review report and the affidavit of its peer review chiropractor established prima facie that there was no medical necessity for the equipment provided by plaintiff. Since plaintiff failed to rebut said showing, defendant was entitled to summary judgment dismissing the complaint (see A Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]).

Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 2008