V.S. Med. Servs., P.C. v One Beacon Ins. (2007 NY Slip Op 50369(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 (Edgar G. Walker, J.), entered May 2, 2005, deemed an appeal from a judgment entered on September 22, 2005 (CPLR 5501 [c]). The judgment, entered pursuant to the order entered May 2, 2005 which denied plaintiff’s motion for partial summary judgment in the sum of $3,268.58 and granted defendant’s cross motion for summary judgment, dismissed the complaint.

Judgment reversed without costs, order dated May 2, 2005 insofar as it granted defendant’s cross motion for summary judgment vacated, defendant’s cross motion for summary judgment denied and complaint reinstated.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation of plaintiff’s counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s corporate officer failed to lay a proper foundation for the documents annexed
to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud [*2]
Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied.

With respect to defendant’s cross motion for summary judgment, however, we are of the opinion that the court erred in granting the cross motion and dismissing the complaint, since, as plaintiff asserted in opposition to the cross motion, defendant did not submit evidence from someone with personal knowledge of the timely mailing of its claim denials (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In the absence of proof of timely mailing, there remains an issue of fact as to whether defendant was precluded from interposing its defense of lack of medical necessity. Accordingly, dismissal was not warranted.

We pass on no other issues.

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to affirm the judgment in the following memorandum:

In my opinion, the judgment should be affirmed.

While I am in agreement with the majority that plaintiff did not make out its prima facie entitlement to judgment as a matter of law, and that the court below properly denied its motion for partial summary judgment, I do not agree with its conclusion with respect to defendant’s cross motion. In my opinion, based upon a review of the record,
the papers submitted by defendant in support of its cross motion for summary judgment established its prima facie entitlement to such relief. Inasmuch as plaintiff, in
opposition thereto, failed to proffer sufficient evidence in admissible form to raise a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]), summary judgment in favor of defendant was warranted.
Decision Date: February 27, 2007