Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(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 (Arlene Bluth, J.), entered December 1, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order 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 a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. Defendant cross-moved for summary judgment on the ground of
lack of medical necessity or, in the alternative, on the ground that the assignor was not injured in a covered accident. The court below denied plaintiff’s motion on the ground that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s corporate officer was legally insufficient and granted defendant’s cross motion for summary judgment due to plaintiff’s failure to proffer evidence rebutting the peer review report annexed to defendant’s cross motion. The instant appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to [*2]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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; 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.

Plaintiff’s contention that defendant was not entitled to summary judgment on its cross motion because the NF-10 denial form is fatally defective lacks merit. Inasmuch as defendant’s omissions from the NF-10 denial form in this matter are neither “basic” (cf. Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]) nor “numerous” (cf. Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613, 614 [1996]), they do not render the denial form fatally defective.

Further, defendant’s peer review report established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted. As a result, the court properly granted defendant’s cross motion for summary judgment (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]; see 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]).

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

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ.
DELTA DIAGNOSTIC RADIOLOGY, P.C.
a/a/o FRANCISCA CHANEYFIELD,

Appellant,

-against-
AMERICAN TRANSIT INSURANCE CO., [*3]

Respondent.

Golia, J., concurs with the result only, in the following memorandum:
While I am in total agreement with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views. I note an important legal issue which is an integral part of the majority opinion, that is, the concept that the failure of an answering party to respond to the facts presented by the moving party requires the court to accept those facts as proven.
Decision Date: December 27, 2007