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

SUPREME COURT OF THE STATE OF NEW YORK

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

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