September 10, 2008
Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51870(U))
Headnote
Reported in New York Official Reports at Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51870(U))
| Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. |
| 2008 NY Slip Op 51870(U) [20 Misc 3d 145(A)] |
| Decided on September 10, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1648 Q C.
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 24, 2007. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion for, inter alia, summary judgment dismissing the complaint.
Order modified by providing that plaintiff’s 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, plaintiff moved
for summary judgment and defendant cross-moved for summary judgment dismissing the
complaint on the ground of lack of medical necessity, or, in the
alternative, for “Partial Summary Judgment on the issue of the Defendant’s timely denial.”
The court below granted plaintiff’s motion and implicitly denied defendant’s cross motion. The
instant appeal by defendant ensued.
On appeal, defendant argues that the affidavit of plaintiff’s billing manager and corporate officer, submitted in support of plaintiff’s motion, 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 its prima facie case. We agree. The affidavit submitted by plaintiff’s billing manager and corporate officer was insufficient to establish that he 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 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 [*2]Term, 2d & 11th Jud Dists 2006]), and its motion should have been denied.
With respect to defendant’s cross motion, defendant contends that its NF-10 denial of claim forms were timely since its verification requests tolled the statutory 30-day time period in which it had to pay or deny the claims. We note, however, that defendant failed to establish that it timely mailed its verification requests and denial of claim forms inasmuch as the affidavit of its litigation examiner did not sufficiently set forth defendant’s standard office practices and procedures used to ensure that said documents were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Uptodate Med. Servs., P.C. v Lubermens Mut. Cas. Co., 20 Misc 3d 135[A], 2008 NY Slip Op 51502[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant’s cross motion was properly denied.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 2008