Infinity Health Prods., Ltd. v Progressive Ins. Co. (2008 NY Slip Op 50345(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, Queens County (Gerald Dunbar, J.), entered March 21, 2006, deemed from a judgment entered on April 13, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 17, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,312.75.

Judgment reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for all further proceedings.
In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross
motion for summary judgment. A judgment was subsequently entered. The instant appeal by defendant ensued.
On appeal, defendant asserts that the affidavit by plaintiff’s billing manager, submitted in support of plaintiff’s 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 billing manager was insufficient to establish that she 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 [*2]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 motion for summary judgment is denied.
Defendant’s contention that it was entitled to summary judgment upon its cross motion because plaintiff failed to serve responses to defendant’s timely initial and follow-up verification requests lacks merit. The affidavit submitted by defendant stated that it was defendant’s standard office practice and procedure to stamp the date on which its verification requests were mailed in the upper right hand corner of the requests and that the initial and follow-up verification requests were timely mailed on December 2, 2004 and January 11, 2005, respectively. However, the initial and follow-up verification requests annexed to defendant’s cross motion were both date-stamped December 2, 2004 in the upper right hand corner. Thus, the documentary proof annexed to defendant’s cross motion was insufficient to give rise to a presumption that the follow-up verification request was timely mailed pursuant to defendant’s professed standard office practice and procedure (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; PDG Psychological, P.C. v Lumbermans Mut. Cas. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51343[U] [App Term, 2d & 11th Jud Dists 2007]; Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co., 17 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, defendant’s cross motion for summary judgment was properly denied.
Pesce, P.J., and Rios, J., concur.
Decision Date: February 21, 2008