January 30, 2007

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

Headnote

MVAIC's unsworn chiropractor's report was inadmissible and failed to raise a triable issue on medical necessity. The Appellate Term, First Department, reversed the order denying the provider's motion for partial summary judgment and granted the motion. The provider established mailing and receipt of the prescribed billing forms and that payment was overdue under Insurance Law § 5106 (a). MVAIC's report supporting its medical-necessity defense was not in admissible form under CPLR 2106 and had to be excluded from consideration. MVAIC therefore failed to rebut the provider's prima facie showing.

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This opinion is uncorrected and will not be published in the printed Official Reports.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

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