Health Plus Med., P.C. v American Mfrs. Mut. Ins. Co. (2008 NY Slip Op 51444(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 (Genine D. Edwards, J.), entered January 24, 2007. The order denied defendants’ motion for summary judgment and granted plaintiff’s cross motion for summary judgment.

Order modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendants moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The court denied defendants’ motion for summary judgment, finding that defendants failed to establish the mailing of their denial of claim forms to plaintiff, and granted plaintiff’s cross motion for summary judgment. The instant appeal by defendants ensued.

On appeal, defendants assert that the affidavit from plaintiff’s counsel’s employee, submitted in support of plaintiff’s cross motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s counsel’s employee was insufficient to establish that said person 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. Accordingly, plaintiff [*2]failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; 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 cross motion for summary judgment is denied.

With respect to defendants’ motion for summary judgment, defendants contend that they made out a prima facie case entitling them to summary judgment since they established that they timely denied plaintiff’s claims on the ground that the services provided were not medically necessary and plaintiff failed to rebut said showing. However, the affidavit of defendants’ no-fault examiner was insufficient either to establish that she personally mailed the verification requests and denial of claim forms at issue or to give rise to a presumption that defendants timely mailed them in accordance with defendants’ standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since defendants failed to establish that the claims were denied within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]), the court below properly denied defendants’ motion for summary judgment because defendants did not establish that the defense upon which they sought summary judgment was not precluded (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

Golia, J., concurs in a separate memorandum.

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

While I agree 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.
Decision Date: July 8, 2008