April 29, 2008

V.S. Medical Services, P.C. v New York Cent. Mut. Ins. (2008 NY Slip Op 51473(U))

https://www.beynensonlaw.com/case-law/v-s-medical-services-p-c-v-new-york-cent-mut-ins-2008-ny-slip-op51473u/

Court: Appellate Term, Second Department
Decided: April 29, 2008
Citation: 2008 NY Slip Op 51473(U) · 20 Misc 3d 134(A)
Posture: Other motion
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Discovery and procedure

Cite as

V.S. Medical Services, P.C. v New York Cent. Mut. Ins., 20 Misc 3d 134(A), 2008 NY Slip Op 51473(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to prove the provider's noncompliance with a deposition order through an affidavit based on personal knowledge. A prior order required production of the treating physician by a specified date and provided for dismissal upon noncompliance. After the scheduled deposition did not proceed, the insurer moved to dismiss under that order. Counsel's affirmation asserting that the physician was not produced lacked personal knowledge, rested on unsubstantiated hearsay, and had no probative value. The Appellate Term, Second Department, affirmed denial of the insurer's dismissal motion; a separate concurrence agreed only in the result.

Reported in New York Official Reports at V.S. Medical Services, P.C. v New York Cent. Mut. Ins. (2008 NY Slip Op 51473(U))

[*1]

V.S. Medical Services, P.C. v New York Cent. Mut. Ins.

2008 NY Slip Op 51473(U) [20 Misc 3d 134(A)]

Decided on April 29, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 29, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2007-97 Q C. NO. 2007-97 Q C

V.S. Medical Services, P.C. as assignee of Miriam Maldonado, Respondent,
against
New York Central Mutual Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated November 1, 2006. The order denied defendant’s motion to dismiss the complaint and awarded plaintiff $50 in costs.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, defendant moved to compel the appearance for deposition of, among others, plaintiff’s treating physician. The court granted the motion to the extent that plaintiff was ordered to provide the treating physician by a date certain. The order further provided that the court would dismiss the complaint if plaintiff failed to comply with the order. Defendant then served a notice for deposition, dated April 7, 2006, for a deposition scheduled for April 12, 2006 at 3:00 P.M. The deposition did not go forward, and defendant moved for an order, pursuant to the prior order, to dismiss the complaint. Defendant now appeals from the order denying its motion to dismiss the complaint and awarding plaintiff $50 in costs.

In support of defendant’s motion to dismiss the complaint, defendant did not offer the affidavit of a person with personal knowledge of the facts. The affirmation by defendant’s attorney, stating that plaintiff failed to produce plaintiff’s physician for the deposition, was not based on personal knowledge of the facts which he alleged, and, as such, is based upon unsubstantiated hearsay and has no probative value (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Said v Abarn Equip. Corp., 195 Misc 2d 451, 452 [2002]). Accordingly, defendant’s motion was properly denied (see Stephen Fogel Psychological, P.C. v Progressive Cas. Inc. Co., 35 AD3d 720 [2006]). [*2]

With respect to the court’s award to plaintiff of costs in the sum of $50, we note that CCA 1906 (a) vests the court with the discretion to impose costs not in excess of $50 upon the granting or denying of a motion. Under the circumstances presented, the imposition of costs was not an improvident exercise of the court’s discretion (see e.g. Bronxborough Med., P.C. v Travelers Ins. Co., 16 Misc 3d 132[A], 2007 NY Slip Op 51485[U] [App Term, 2d & 11th Jud Dists 2007]).

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: April 29, 2008

Cited in this decision

A label shows how this decision treated the case it cites.

Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Bronxborough Med., P.C. v Travelers Ins. Co. (2007 NY Slip Op 51485(U))The provider failed to establish prima facie entitlement to summary judgment through admissible business records.

Cited by

A label shows how the later decision treated this one.

Eagle Surgical Supply, Inc. v Travelers Indem. Co. (2010 NY Slip Op 51456(U)) FollowedThe insurer failed to establish that the provider had not supplied requested verification, defeating its summary judgment motion.
Allstate Ins. Co. v Musa-Obregon (2008 NY Slip Op 52382(U))The subrogation defendant failed to establish an excuse for default through an attorney affirmation lacking personal knowledge.

Similar decisions

V.S. Med. Servs., P.C. v New York Cent. Mut. Ins. (2007 NY Slip Op 51080(U))The provider's summary judgment motion failed because its officer's affidavit did not establish a business-records foundation.
V.S. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50400(U))The provider failed to prove claim submission because its corporate officer's affidavit lacked a sufficient business-records foundation.
V.S. Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52553(U))A billing provider cannot recover direct assigned no-fault payments for services rendered by independent contractors rather than its employees.
V.S. Med. Servs., P.C. v Farm Family Ins. (2007 NY Slip Op 52287(U))The provider's summary judgment proof lacked a proper business-record foundation because its officer's personal knowledge was not established.
V.S. Med. Servs., P.C. v One Beacon Ins. (2007 NY Slip Op 50369(U))The insurer failed to prove timely mailing of its denials, while the provider failed to establish a business-records foundation.