June 29, 2009

Inwood Hill Med., P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 51397(U))

Headnote

The main issues in this case were whether the providers were entitled to recover first-party no-fault benefits and whether the insurer's denial of the claims based on the assignor's failure to appear for scheduled examinations under oath and independent medical examinations was proper. The court considered the evidence submitted by both parties, including the documents annexed to the providers' motion for summary judgment, and the insurer's assertion that the assignor failed to appear for the scheduled examinations. The court held that the providers failed to make a prima facie showing of their entitlement to summary judgment, as the affidavit submitted by their medical biller did not establish the admissibility of the documents. Additionally, the insurer failed to establish by admissible proof that the assignor had not appeared for the scheduled examinations. Therefore, the court modified the order and denied the insurer's cross motion for summary judgment, affirming the decision without costs.

Reported in New York Official Reports at Inwood Hill Med., P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 51397(U))

Inwood Hill Med., P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 51397(U)) [*1]

Inwood Hill Med., P.C. v Progressive Cas. Ins. Co.

2009 NY Slip Op 51397(U) [24 Misc 3d 134(A)]

Decided on June 29, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ
2008-1798 N C.

Inwood Hill Medical, P.C., WESTCHESTER NEURODIAGNOSTIC, P.C., and NEW PSYCHOLOGY, P.C. a/a/o ZENEIDA URENA, Appellants,
against
Progressive Casualty Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered July 2, 2008. The order denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing, inter alia, that plaintiffs had failed to lay a foundation for the admission, as business records, of the documents annexed to their motion and that plaintiffs’ assignor had failed to appear for scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The District Court denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. This appeal by plaintiffs ensued.

Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ medical biller failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiffs’ motion for summary judgment was properly denied. [*2]

With regard to defendant’s cross motion for summary judgment, while defendant asserted that it had timely denied plaintiffs’ claims on the grounds that the assignor had failed to appear at scheduled EUOs and IMEs, defendant failed to establish by proof in admissible form that the assignor had not appeared for the EUOs and IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant’s cross motion for summary judgment should have been denied.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009