January 30, 2007

Mollins v Motor Veh. Acc. Indem. Corp. (2007 NY Slip Op 50138(U))

Headnote

The provider sought partial summary judgment of $1,617.60 in no-fault benefits against MVAIC, and the Civil Court denied the motion. The Appellate Term found that the provider made a prima facie showing by evidence that the statutory billing forms were mailed and received and that payment was overdue. In opposition, MVAIC relied on an unsworn chiropractor's report to support a lack of medical necessity defense. That report was not in admissible form and had to be excluded, so no triable issue was raised. The order was reversed and the provider's motion granted.

Reported in New York Official Reports at Mollins v Motor Veh. Acc. Indem. Corp. (2007 NY Slip Op 50138(U))

[*1]
Mollins v Motor Veh. Acc. Indem. Corp.
2007 NY Slip Op 50138(U) [14 Misc 3d 133(A)]
Decided on January 30, 2007
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 30, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKEON, J.P., DAVIS, SCHOENFELD, JJ
570449/06.

Jeff Mollins, DC, a/a/o Yasmin Graham, Plaintiff-Appellant,

against

Motor Vehicle Accident Indemnification Corporation, Defendant-Respondent.


Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), entered November 1, 2005, which denied his motion for partial summary judgment.


PER CURIAM:

Order (Anil C. Singh, J.), entered November 1, 2005, reversed, with $10 costs, and plaintiff’s motion for partial summary judgment in the principal sum of $1,617.60 granted.The Clerk is directed to enter judgment accordingly.

Plaintiff established a prima facie entitlement to partial summary judgment in the sum of $1,617.60, by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In opposition, defendant failed to raise a triable issue of fact. The unsworn chiropractor’s report submitted by defendant in support of its defense of lack of medical necessity was not in admissible form (see CPLR 2106), a defect which requires its exclusion from consideration (see Shinn v Catanzaro, 1 AD3d 195, 197 [2003]).

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: January 30, 2007