February 1, 2007

Infinity Chiropractic, P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 50262(U))

Headnote

The court considered the denial of the plaintiff's cross motion for summary judgment and the granting of the defendant's motion to compel discovery, which required the plaintiff to produce a treating provider for a deposition in an action to recover assigned first-party no-fault benefits for health care services rendered to its assignor. The main issue decided was whether the denial of the plaintiff's cross motion for summary judgment and the granting of the defendant's motion to compel discovery were justified based on the evidence and procedures presented. The holding of the court was that the denial of the plaintiff's cross motion for summary judgment was without merit, as the affidavit submitted by the plaintiff's corporate officer was insufficient to establish personal knowledge of the plaintiff's practices and procedures. Therefore, the plaintiff failed to make a prima facie showing of entitlement to summary judgment, and the appeal from the denial of the cross motion for summary judgment was dismissed.

Reported in New York Official Reports at Infinity Chiropractic, P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 50262(U))

Infinity Chiropractic, P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 50262(U)) [*1]

Infinity Chiropractic, P.C. v New York Cent. Mut. Ins. Co.

2007 NY Slip Op 50262(U) [14 Misc 3d 138(A)]

Decided on February 1, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-38 Q C.

Infinity Chiropractic, P.C. a/a/o ROSE DIOGENE, Appellant,
against
New York Central Mutual Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered October 24, 2005. The order denied plaintiff s cross motion for summary judgment and granted defendant’s unopposed motion to compel discovery to the extent of requiring plaintiff to produce, for a deposition, a physician who treated plaintiff’s assignor.

Appeal from so much of the order as granted defendant’s motion to compel discovery dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action to recover assigned first-party no-fault benefits for health care services rendered to its assignor, defendant moved to compel depositions and plaintiff cross-moved for summary judgment. The court below denied plaintiff’s cross motion and granted defendant’s unopposed motion to the extent of directing plaintiff to produce a treating provider for a deposition. Since plaintiff failed to submit written opposition to defendant’s motion to compel discovery, to the extent the order granted defendant’s motion, it was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s motion to compel discovery is dismissed.

Plaintiff’s appeal from the branch of the order which denied its cross motion for summary judgment is without merit. As noted by defendant, the affidavit submitted by plaintiff’s corporate officer was insufficient to 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 (see Dan Med., P.C. v New York [*2]Cent. Mut. Fire Ins. Co., ___Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483, supra).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: February 1, 2007