Vista Surgical Supplies, Inc. v American Protection Ins. Co. (2008 NY Slip Op 51229(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 (Johnny Lee Baynes, J.), entered September 28, 2005, deemed from a judgment entered November 27, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 28, 2005 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits for medical supplies furnished to plaintiff’s assignor, defendant timely denied plaintiff’s claims upon the ground of lack of medical necessity based upon an affirmed peer review report. After this action was commenced, the parties entered into a stipulation which provided that plaintiff would be precluded from presenting evidence at trial as to medical necessity if plaintiff failed to appear for depositions. Plaintiff failed to appear for depositions and thereafter moved for summary judgment. Defendant cross-moved for summary judgment. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, holding that defendant’s affirmed peer review report established that the supplies furnished by plaintiff were not medically necessary and that plaintiff was precluded from presenting rebuttal evidence as to medical necessity. This appeal by plaintiff ensued.

While plaintiff contends that it is entitled to summary judgment, on appeal, defendant asserts that the affidavit of plaintiff’s corporate officer, submitted in support of the motion, 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. The affidavit submitted by plaintiff’s [*2]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. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied (see Parochial Bus Sys.v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]).

With respect to the merits of defendant’s cross motion for summary judgment, defendant established that it timely requested verification and, that, upon receipt of such verification, defendant timely denied plaintiff’s claim based on an affirmed peer review report. Since the peer review report submitted by defendant in support of its cross motion established prima facie that the supplies furnished by plaintiff were not medically necessary and plaintiff did not present any evidence refuting defendant’s prima facie showing, the court below properly granted defendant’s cross motion for summary judgment dismissing the complaint (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff’s remaining contention regarding the signature of the doctor upon the peer review report annexed to defendant’s cross motion lacks merit.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 12, 2008