First Help Acupuncture, P.C. v Progressive Northeastern Ins. Co. (2007 NY Slip Op 51167(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 (Dolores L. Waltrous, J.), entered August 9, 2005, deemed an appeal from a judgment entered on May 8, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 9, 2005 order granting plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment on plaintiff’s claims regarding assignors Arsen Manukyan, Tsaruk Sarkisian, Dejan Nikolic, Nunu Dzhgamaia and Tsira Gogadze, awarded plaintiff the sum of $24,157.78.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment vacated and plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $900 and $154.30 claims relating to assignor Dejan Nikolic and, with respect to assignor Arsen Manukyan, upon the $400 claim dated February 19, 2003, the $300 claim dated April 10, 2003 and the $700 claim, and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining claims.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed the motion. The court below granted [*2]plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment on all of its claims regarding assignors Arsen Manukyan, Tsaruk Sarkisian, Dejan Nikolic, Nunu Dzhgamaia and Tsira Gogadze. The instant appeal by defendant ensued.

Since defendant raised no issue on appeal regarding plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

With regard to the motor vehicle accident of May 27, 2002, plaintiff submitted two bills in the amounts of $900 and $154.30 for services provided to assignor Dejan Nikolic. Although defendant denied these claims based upon Nikolic’s alleged failure to appear for scheduled independent medical examinations, defendant did not submit an affidavit from someone with personal knowledge regarding his failure to appear. As a result, defendant failed to raise a triable issue of fact with regard to said claims (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

With respect to the motor vehicle accident of November 25, 2002, defendant asserted that plaintiff was not entitled to recover upon the bills for services provided to assignors Arsen Manukyan, Tsaruk Sarkisian, Nunu Dzhgamaia and Tsira Gogadze on the ground that the injuries sustained were not causally related to the accident. In support of said defense, defendant submitted an unsworn accident analysis report and, with respect to Arsen Manukyan, annexed a copy of an unsworn peer review report from a chiropractor and an affirmed peer review report from Jacquelin Emmanuel, M.D. The peer review report from the chiropractor as well as the accident analysis report were inadmissible and, as such, could not establish defendant’s defense that the injuries sustained were not causally related to the accident (see Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists]). In addition, although Dr. Emmanuel’s peer review report was affirmed, it merely concluded that said assignor was not disabled. As a result, said peer review report was insufficient to demonstrate that defendant’s defense of a lack of nexus between the accident and the injuries claimed was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). However, the peer review reports submitted with respect to assignors Tsaruk Sarkisian, Nunu Dzhgamaia and Tsira Gogadze were affirmed by Robert Israel, M.D., who concluded that the injuries they sustained were not related to the November 25, 2002 accident. Said peer review reports were sufficient to establish the existence of a triable issue of fact with regard to the bills submitted on behalf of said assignors (see Central Gen. Hosp., 90 NY2d at 199).

In addition, defendant’s litigation representative established that defendant timely denied bills relating to Arsen Manukyan in the amounts of $914.33, $500, $400 (dated January 27, 2003) and $300 (dated March 3, 2003) on the ground that “a prescribed authorization or assignment of benefits was not submitted and/or was not properly executed.” Thus, defendant raised an issue of fact with respect thereto (see A.B. Med. Servs. PLLC v Peerless, Ins. Co., 13 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2006]; see also Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]).

Accordingly, plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $900 and $154.30 claims relating to assignor Dejan [*3]Nikolic and, with respect to assignor Arsen Manukyan, upon the $400 claim dated February 19, 2003, the $300 claim dated April 10, 2003 and the $700 claim, and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining claims.

Pesce, P.J., and Rios, 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 : PESCE, P.J., GOLIA and RIOS, JJ.
FIRST HELP ACUPUNCTURE, P.C.
a/a/o ARSEN MANUKYAN, TSARUK SARKISIAN,
DEJAN NIKOLIC, NUNU DZHGAMAIA,
TSIRA GOGADZE and JANELLE PHILOGENE,

Respondent,

-against-
PROGRESSIVE NORTHEASTERN INS. CO.,

Appellant.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not 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.

In the first instance I believe that this Court cannot abrogate its mandate to insure that, at a bare minimum, a prima facie case must be presented by a plaintiff before judgment may be awarded or affirmed.

Furthermore, for the reason stated in my dissent in Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co. (6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]), I find that unsworn reports when submitted in opposition to a motion for summary judgment are sufficient for the purpose of raising a triable issue of fact (see also Levbarg v City of New York, 282 AD2d 239, 241 [2001]).
Decision Date: June 5, 2007