Careplus Med. Supply, Inc. v AutoOne Ins. Co. (2009 NY Slip Op 51372(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (David Goodsell, J.), dated April 17, 2008. The order, insofar as appealed from, denied so much of plaintiff’s motion as sought summary judgment with respect to bills totaling the sum of $9,094.

Order, insofar as appealed from, reversed without costs, so much of plaintiff’s motion as sought summary judgment with respect to bills totaling the sum of $9,094 granted and matter remanded to the District Court for a calculation of statutory interest and an assessment of attorney’s fees due thereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, supporting the motion with an affirmation from plaintiff’s counsel, an affidavit from plaintiff’s president and medical biller, and various documents. In opposition to the motion, defendant argued, inter alia, that summary judgment should be denied as to the bills at issue on this appeal because plaintiff’s attempt to recover upon said bills was premature due to the failure of plaintiff’s assignors to appear for properly noticed independent medical examinations (IMEs). In an order dated April 17, 2008, insofar as appealed from, the District Court denied so much of plaintiff’s motion as sought summary judgment upon said bills, on the ground that defendant had established that the assignors had failed to appear for IMEs.

On appeal, defendant asserts that the affidavit submitted by plaintiff’s president and [*2]medical biller was insufficient to establish that the documents annexed to plaintiff’s motion were admissible as business records. However, this argument is raised for the first time on appeal, and we decline to reach it (see Nyack Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 133[A], 2008 NY Slip Op 52184[U] [App Term, 9th & 10th Jud Dists 2008]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). As a result, we do not pass upon the propriety of the District Court’s determination that plaintiff established its prima facie case (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Although defendant denied the bills at issue on the ground that plaintiff’s assignors failed to attend scheduled IMEs, the affidavits submitted by defendant were insufficient to establish proper mailing of the IME scheduling letters, which would give rise to a presumption that the items were received by the addressee (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see also Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant failed to establish that plaintiff’s assignors did not appear for IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, defendant failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In light of the foregoing, the order, insofar as appealed from, is reversed, so much of plaintiff’s motion as sought summary judgment with respect to bills totaling the sum of $9,094 is granted and the matter is remanded to the District Court for the
calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Tanenbaum, J.P., and Molia J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009