December 10, 2010

Fortune Med., P.C. v Country Wide Ins. Co. (2010 NY Slip Op 52154(U))

https://www.beynensonlaw.com/case-law/fortune-med-p-c-v-country-wide-ins-co-2010-ny-slip-op-52154u/

Court
Appellate Term, Second Department
Decided
December 10, 2010
Citation
2010 NY Slip Op 52154(U) · 29 Misc 3d 141(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Provider's prima facie case
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
Fortune Med., P.C. v Country Wide Ins. Co., 29 Misc 3d 141(A), 2010 NY Slip Op 52154(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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.

The provider failed to establish its prima facie case because its officer's affidavit did not authenticate the supporting documents as business records. The Appellate Term, Second Department, reversed the judgment awarding assigned no-fault benefits, vacated the underlying orders, denied the provider's summary judgment motion, and remitted the complaint for further proceedings. The affidavit did not establish admissibility under CPLR 4518 (a). Reversal rendered academic the insurer's motion to recalculate statutory interest and attorney's fees and the provider's cross motion to enter judgment using its calculations. The insurer's appellate request for restitution under CPLR 5523 was denied without prejudice to seeking that relief in Civil Court upon determination of the action's merits.

Reported in New York Official Reports at Fortune Med., P.C. v Country Wide Ins. Co. (2010 NY Slip Op 52154(U))

[*1]
Fortune Med., P.C. v Country Wide Ins. Co.
2010 NY Slip Op 52154(U) [29 Misc 3d 141(A)]
Decided on December 10, 2010
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-1572 Q C.
Fortune Medical, P.C. as Assignee of ANNA SANDOVAL, Respondent,

against

Country Wide Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered April 3, 2007. The judgment, entered pursuant to orders of the same court dated June 15, 2006, granting plaintiff’s motion for summary judgment, and March 14, 2007, granting, in part, defendant’s motion, in effect, to recalculate the awards of attorney’s fees and statutory interest and implicitly denying plaintiff’s cross motion to enter judgment in accordance with plaintiff’s calculations, awarded plaintiff the principal sum of $9,231.36.

ORDERED that the judgment is reversed, without costs, the orders dated June 15, 2006 and March 14, 2007 are vacated, plaintiff’s motion for summary judgment is denied, defendant’s motion for a recalculation of the awards of attorney’s fees and statutory interest, and plaintiff’s cross motion to enter judgment in accordance with plaintiff’s calculations, are denied as academic, and the matter is remitted to the Civil Court for all further proceedings on the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing, among other matters, that plaintiff failed to establish, prima facie, that it is entitled to judgment as a matter of law. In an order dated June 15, 2006, the Civil Court granted the motion. After plaintiff submitted a proposed judgment, defendant moved for a recalculation of the awards of attorney’s fees and statutory interest, and plaintiff cross-moved to enter judgment in accordance with its own calculations. In an order dated March 14, 2007, the Civil Court granted defendant’s motion, in part, and implicitly denied plaintiff’s cross motion. Defendant appeals from the judgment entered [*2]pursuant to these orders.

Upon a review of the record, we agree with defendant’s contention that plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s “officer” failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (a) (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v New York Cent. Mut. Fire Ins., 19 Misc 3d 129[A], 2008 NY Slip Op 50522[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, plaintiff’s motion for summary judgment should have been denied, and defendant’s motion and plaintiff’s cross motion regarding the proper method of calculating attorney’s fees and statutory interest should have been denied as academic.

To the extent that defendant, in its brief on appeal, seeks restitution in the event the judgment is reversed (see CPLR 5523), its application is denied without prejudice to seeking such relief in the Civil Court, to be decided by the court upon its determination of the merits of the action.
Accordingly, the judgment is reversed, the orders dated June 15, 2006 and March 14, 2007 are vacated, plaintiff’s motion for summary judgment is denied, defendant’s motion and plaintiff’s cross motion regarding the proper method of calculating attorney’s fees and statutory interest are denied as academic, and the matter is remitted to the Civil Court for all further proceedings on the complaint.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

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