July 7, 2005

Maximum Physical Therapy, P.C. v Allstate Ins. Co. (2005 NY Slip Op 51215(U))


The main issues in this case revolved around a plaintiff's motion for summary judgment in a first-party no-fault benefits claim against an insurance company. The plaintiff sought to recover statutory interest and attorney's fees, as well as medical expenses for services rendered to their assignor. The court considered whether the plaintiff had made a prima facie showing of entitlement to judgment as a matter of law and whether the insurance company had failed to pay or deny the claim within the statutory 30-day period. The court held that the plaintiff's motion for summary judgment was denied as they failed to make a sufficient showing of entitlement to judgment, and their submissions did not constitute evidentiary proof in admissible form. Therefore, there were issues of fact requiring a trial, and summary judgment was unwarranted.

Reported in New York Official Reports at Maximum Physical Therapy, P.C. v Allstate Ins. Co. (2005 NY Slip Op 51215(U))

Maximum Physical Therapy, P.C. v Allstate Ins. Co. (2005 NY Slip Op 51215(U)) [*1]
Maximum Physical Therapy, P.C. v Allstate Ins. Co.
2005 NY Slip Op 51215(U)
Decided on July 7, 2005
Civil Court, Queens County
Lane, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2005

Civil Court, Queens County

Maximum Physical Therapy, P.C., a/a/o Donnette Coburn, Claimant(s), Plaintiff(s), Petitioner(s),


Allstate Insurance Company, Defendant(s), Respondent(s).


Howard G. Lane, J.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor, Donnette Coburn, pursuant to New York’s No-Fault Insurance Law § 5101 et. seq., as well as statutory interest and attorney’s fees. Thereafter, plaintiff moved for summary judgment on its claims in the amount of $510.00, on the ground that defendant failed to pay or to deny its claims within the statutory 30-day period as required by Insurance Law § 5106 (a).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Stahl v. Stralberg, 287 AD2d 613 [2d Dept 2001]). The motion must be supported by an affidavit from a person with knowledge of the facts, setting forth all material facts (see CPLR § 3212[b]). [*2]Failure to make such showing requires denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If, in opposing the motion, the other party comes forward with evidence of issues of fact requiring a trial, the motion will be denied. (see Rebecchi v. Whitmore, 172 AD2d 600 [2d Dept 1991]).

Pursuant to both the Insurance Law and the regulations promulgated by the Superintendent of Insurance, within thirty (30) days after a claimant submits proof of the fact and the amount of loss sustained, an insurer is required to either pay or deny a claim for insurance coverage of medical expenses arising from a motor vehicle accident (see 11 NYCRR 65.15 [g] [3]; Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195 [1997]; Mount Sinai Hosp., v. Triboro Coach, 263 AD2d 11 [2d Dept 1999]; New York Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 AD2d 583 [2d Dept 2002]).

The only exception to the 30-day rule is where an insurer’s untimely denial is based upon the defense of lack of coverage, or where a medical condition for which the patient was treated, was not related to the accident (Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195 [1997]). To withstand a summary judgment motion based on this defense, the insurer has the burden to come forward with proof in admissible form to establish the fact or the evidentiary foundation for its belief that the patient’s treatment was unrelated to the accident [see generally Metro Med. Diagnostics, P.C., v. Eagle Ins. Co., 293 AD2d 751 [2d Dept 2002]).

Failure to pay or deny a claim within the 30-day period requirement, absent a request for additional verification, renders benefits overdue, and precludes the insurer from disclaiming liability based on a breach of a policy condition or a statutory exclusion defense (St. Clare’s Hosp. v. Allcity Ins. Co., 201 AD2d 720 [2d Dept 1994]). All overdue payments bear interest at a rate of 2% per month, and the claimant is entitled to recover attorney’s fees where a “valid claim or portion” was denied or overdue (see Insurance Law § 5106 [a]; Presbyterian Hosp. in City of New York v. Maryland Cas. Co., 90 NY2d 274 [1997]).


Plaintiff’s motion for summary judgment is denied. In support of the motion, plaintiff submits the affirmation of its attorney and the affidavit of Asnodin Dianalan, a purported corporate officer of plaintiff corporation. It is well settled that an affidavit or affirmation from a party’s attorney who lacks personal knowledge of the facts, is of no probative value and is insufficient to support an award of summary judgment (see Zuckerman v. City of New York, 49 NY2d 557 [1980]; Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc 3d 133(A), [App Term, [*3]2d and 11th Jud Dists 2004]; Wisnieski v. Kraft, 242 AD2d 290 [2d Dept 1997]; Lupinsky v. Windham Constr. Corp., 293 AD2d 317 [1st Dept 2002]). On a summary judgment motion, the insufficiency of an attorney’s affirmation which is not based upon personal knowledge is not cured even when the attorney’s purported knowledge is based upon the attorney’s review of the client’s file (see Park Health Ctr. v. Green Bus Lines, Inc., 2002 NY Slip Op. 40029[U]) (holding an attorney affirmation submitted in opposition to motion for summary judgment in no-fault action arising out of automobile accident, which asserted that attorney’s knowledge regarding whether proper no-fault insurance form had been sent was obtained from reading of the files, rather than his own personal knowledge of the facts, was insufficient to establish existence of triable issue of fact). Thus, although the affirmation of plaintiff’s attorney affirms that she “reviewed the Assignee’s and Defendant’s (sic) business records in the above-captioned file,” it is still of no probative value and is insufficient to establish the existence of any triable issue of fact.

The affidavit of Asnodin Dianalan, a corporate officer of Maximum Physical Therapy, P.C., is also insufficient to establish that there are no issues of fact concerning plaintiff’s claim in that the affidavit fails to indicate the specific sources of his knowledge (e.g. business records or other documents he may have researched or reviewed or persons with whom he consulted) (Barraillier v. City of New York, 12 AD3d 168 [1st Dept. 2004] and contains conclusory allegations regarding his personal knowledge (Wechsler v. People of State of NY, 13 AD3d 941 [3d Dept. 2004]). Mr. Dianalan’s affidavit contains no recitations of fact particular to this action, such as one or more of the following: the specific corporate office held (i.e., president, treasurer, secretary, etc.), the date or dates of service, the services or supplies allegedly provided, date or dates of mailing, or amount outstanding. Rather, Mr. Dianalan’s affidavit contains boilerplate language about the authenticity of non-specified bills and assignment from a non-specified assignor which was witnessed either by him or someone on his staff in his office on an unspecified date (see e.g. Vista Surgical Supplies Inc. v. Utica Mutual Ins. Co., 7 Misc 3d 833 [Civ Ct, Kings County 2005]). It is implicit in Mr. Dianalan’s affidavit that his knowledge has been obtained either from unnamed and unsworn employees or from unidentified and unproduced business records. The cogent parts of the affidavit are not facts but conclusions. Such impermissible conclusions and hearsay cannot justify a grant of summary judgment (Republic Natl. Bank of NY v. Winston, 107 AD2d 581 [1st Dept 1985]).

Instead of proffering the facts in admissible form, Mr. Dianalan merely adopts the statements of plaintiff’s counsel as contained in the attorney’s affirmation. Plaintiff by reference to the attorney affirmation does not cure the insufficiencies of his affidavit, as the attorney’s affidavit is a mixture of factual statements, inferences, conclusions and legal argument (see Howell Mfg. Corp. v. [*4]Leiblein, 32 Misc 2d 50 (Dist Ct., Nassau County, 1962) (where the court held that the practice of adoption by reference of an attorney’s affirmation on a motion for summary judgment “should not be encouraged.”) By adopting the contents of an affirmation which has no probative value, plaintiff’s affidavit which is devoid of material facts is also of no probative value.

Additionally, the affidavit of plaintiff’s corporate officer is defective as to form to the extent of one or more of the following: the affidavit contains no caption, no venue, no opening statement and the signature is not at the bottom of the document, but is on the top of a page isolated by itself, making it appear to the court that it is separate and not a part of the body of the document. Each paper used in a case should have a caption which consists of the name of the court and the venue of the action, its title, and, to the right of the title, what the paper is (e.g., affidavit in support of motion, affirmation in support of motion) (see Siegel, NY Prac § 205 at 324 [3d ed]). An affidavit should ordinarily begin with a recitation of venue (the state, county, and city in which it is made) and contain an opening statement (i.e., “John Smith, being duly sworn, deposes and says”). The signature of the affiant in an affidavit should appear at the bottom of the statement, as opposed to being isolated on the last page, separate and apart from the entire body of the document (see Mellinkoff’s Dictionary of American Legal Usage 17 [1992]). Moreover, to facilitate the clear presentation of the matters set forth in the affidavit, so that, allegations might easily be referenced in subsequent legal papers, the affidavit should contain separate, numbered paragraphs for each factual allegation (see generally Phillips v. Girdich, 408 F3d 124 [2d Cir 2005)].

Because plaintiff’s affidavit does not satisfy CPLR § 3212(b), plaintiff is not entitled to summary judgment. Accordingly, plaintiff’s motion is denied. Plaintiff failed to prove that it submitted a timely and proper notice of claim pursuant to the No-Fault statue for medical treatment or services rendered, which defendant had not paid (see Park Health Center v. Prudential Insurance Co., 2001 NY Slip Op 40650[U]). As plaintiff’s submissions do not constitute evidentiary proof in admissible form (A.B. Medical Servs. v. Eagle Ins. Co., 3 Misc 3d 8 [NY App. Term, 2003]; Rue v Stokes, 191 AD2d 245 [1st Dept 1993]), and plaintiff has failed to provide a proper and sufficient affidavit from a person with personal knowledge of the facts (see CPLR § 3212), it has failed to raise triable issues of fact.

Accordingly, as there are issues of fact requiring a trial, summary judgment

is unwarranted.

This constitutes the decision and order of this court. [*5]

Dated, July 7, 2005________________________________

Howard G. Lane

Judge, Civil Court