SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered April 15, 2008, deemed from a judgment of the same court entered June 16, 2008 (see CPLR 5512 [a]). The judgment, insofar as appealed from as limited by the brief, entered pursuant to the April 15, 2008 order granting plaintiff’s motion for leave to renew defendant’s prior motion and, upon such renewal, denying defendant’s prior motion to modify plaintiff’s proposed judgment by reducing the award to plaintiff of attorney’s fees set forth in plaintiff’s proposed judgment, awarded plaintiff $1,745.47 in attorney’s fees.

ORDERED that the judgment, insofar as appealed from, is modified by reducing the award of attorney’s fees to plaintiff to the sum of $850; as so modified, the judgment is affirmed without costs, so much of the order entered April 15, 2008 as, upon renewal, denied defendant’s motion to reduce the proposed judgment is vacated and defendant’s motion is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff alleged five unpaid claims as its cause of action. The Civil Court granted plaintiff’s motion for summary judgment as to four of the claims. Following this court’s affirmance of the order (A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 13 Misc 3d 126[A], 2006 NY Slip Op 51662[U] [App Term, 2d & 11th Jud Dists 2006]), defendant moved to modify plaintiff’s proposed judgment to limit the award of attorney’s fees to the sum of $850, rather than the proposed total of $1,745.47 sought therein, which fee had been calculated on a per claim basis. The Civil Court granted defendant’s motion. Thereafter, in light of the opinion of the Appellate Division, Third Department, in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 AD3d 1290 [2007]), the Civil Court granted plaintiff’s motion for leave to renew defendant’s motion and, upon renewal, allowed the fees as previously proposed by plaintiff. Defendant appeals from that order. Plaintiff subsequently entered a judgment which included the award of $1,745.47 as attorney’s fees, from which judgment this appeal is deemed taken (CPLR 5512 [a]).

In LMK Psychological Servs., P.C. v State Farm Mut. Aut. Ins. Co. (12 NY3d 217, 222-223 [2009]), the Court of Appeals reversed the Appellate Division and accepted the opinion of [*2]the Superintendent of Insurance (Ops Gen Counsel NY Ins Dept No. 03-10-04 [Oct. 2003]), which “interpreted a claim to be the total medical expenses claimed in a cause of action pertaining to a single insured, and not . . . each separate medical bill submitted by the provider.” As a result, the Court of Appeals held that attorney’s fees are to be calculated based “on the aggregate of all bills for each insured,” to a maximum of $850 (LMK Psychological Servs., P.C., 12 NY3d at 223).

Accordingly, as there is but one insured involved herein, the award of attorney’s fees to plaintiff is reduced to the sum of $850.

Pesce, P.J. Weston and Steinhardt, JJ., concur.
Decision Date: February 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal by defendant from a decision of the Civil Court of the City of New York, Queens County (Robert D. Kalish, J.), deemed from the judgment entered pursuant thereto on August 11, 2008 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $340.

ORDERED that the judgment is reversed without costs and the complaint is dismissed.

In this action to recover assigned first-party no-fault benefits, the parties stipulated at trial that plaintiff is a lawfully constituted professional service corporation wholly owned by a licensed physician, that the physician was not certified to perform acupuncture at the time the acupuncture services at issue were provided, and that the services were provided by a licensed acupuncturist employed by plaintiff. The parties also stipulated that the sole issue for the Civil Court’s determination was whether plaintiff had standing to commence this action to recover benefits under the no-fault provisions of the insurance policy. In its decision, the Civil Court ruled that a lawfully formed medical professional service corporation owned by a licensed physician may receive reimbursement of no-fault benefits for acupuncture services rendered by an employee who is a licensed acupuncturist notwithstanding that the physician was not certified to perform acupuncture. Defendant appeals from that decision. We deem the appeal to be from the judgment which was subsequently entered in favor of plaintiff (see CPLR 5520 [c]).

Insurance Department Regulations (11 NYCRR) § 65-3.16 (a) (12) states that “[a] provider of health care services is not eligible for reimbursement [of no-fault benefits] if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service[s]” (see e.g. Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37, 38-39 [App Term, 2d & 11th Jud Dists 2007]).

Only someone properly licensed or certified may practice acupuncture in New York State (Education Law § 8212; Great Wall Acupuncture v GEICO Ins. Co., Misc 3d , 2009 NY Slip Op 29467 [App Term, 2d, 11th & 13th Jud Dists 2009]; Lexington Acupuncture, P.C. v State [*2]Farm Ins. Co., 12 Misc 3d 90, 92 [App Term, 2d & 11th Jud Dists 2006]). Physicians are not authorized to practice acupuncture by virtue of their medical licenses; rather, they must satisfy the certification requirements if they are to practice acupuncture (Education Law §§ 8212, 8216 [3]; Education Department Regulations [8 NYCRR] § 60.9). Thus, the certificate of incorporation for a professional service corporation that seeks to obtain reimbursement of no-fault benefits for acupuncture services rendered “shall have attached thereto a certificate or certificates issued by the [Education Department] certifying that each of the proposed shareholders, directors and officers is authorized by law to practice a profession which the corporation is being organized to practice and, if applicable, that one or more of such individuals is authorized to practice [acupuncture]” (Business Corporation Law § 1503 [b]; see e.g. Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58, 60 [App Term, 2d & 11th Jud Dists 2006]; Lexington Acupuncture, P.C., 12 Misc 3d at 92).

Where, as here, a professional service corporation is owned solely by a doctor who is not a certified acupuncturist at the time the acupuncture services at issue were rendered, such professional service corporation is not entitled to reimbursement of assigned no-fault benefits for such services notwithstanding the fact that the acupuncture services were rendered by a licensed acupuncturist employed by the corporation and that the corporation’s owner subsequently became a certified acupuncturist (Business Corporation Law § 1503 [b]; § 1507; Insurance Department Regulations [11 NYCRR] § 65-3.12 [a]; cf. Healthmakers Med. Group, P.C. v Travelers Indem. Co., 13 Misc 3d 136[A], 2006 NY Slip Op 52118[U] [App Term, 1st Dept 2006]). Accordingly, the judgment is reversed and the complaint dismissed.
Golia, J.P., Pesce and Weston, JJ., conur.
Decision Date: February 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), dated March 6, 2009. The order, insofar as appealed from, upon granting plaintiff’s motion for leave to reargue the branch of plaintiff’s prior motion which sought to limit the issues to be tried pursuant to CPLR 3212 (g), denied that branch of plaintiff’s prior motion.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. Defendant submitted opposition papers. The District Court denied the branch of plaintiff’s motion seeking summary judgment. Thereafter, plaintiff moved for leave to reargue, asserting that the court had not rendered a decision with regard to the branch of its motion which sought an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. Defendant submitted opposition papers, and the District Court granted leave to reargue and, upon reargument, denied the branch of plaintiff’s motion which sought an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. The instant appeal by plaintiff ensued.

Upon a review of the record, we find that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as the affidavit of its billing manager failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, we find no basis to disturb the District Court’s denial of the branch of plaintiff’s motion seeking a determination pursuant to CPLR 3212 (g) that plaintiff had, inter alia, established its prima facie case.

Accordingly, the order, insofar as appealed from, is affirmed.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: February 05, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 14, 2009. The order denied a petition to vacate a master arbitrator’s award and an arbitrator’s award, and confirmed the awards.

ORDERED that the order is affirmed without costs.

In this proceeding pursuant to CPLR 7511 to vacate an arbitrator’s award which denied petitioner’s claim for assigned first-party no-fault benefits, as well as a master arbitrator’s award which upheld the arbitrator’s award, respondent opposed the petition, asserting that the arbitrator had properly denied petitioner’s claim and that the master arbitrator had properly upheld the award. The District Court denied the petition and confirmed the awards. This appeal by petitioner ensued.

The standard applicable to judicial review of an award in a compulsory arbitration proceeding is whether the award had evidentiary support and was not arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Applying this standard to the instant proceeding, we find no basis to vacate the arbitrator’s award and the master arbitrator’s award. Accordingly, the District Court properly denied the petition to vacate said awards and, rather, properly confirmed them.

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Nicolai, P.J., and Iannacci, J., concur.

Molia, J., taking no part.
Decision Date: February 05, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from a decision of the District Court of Nassau County, Second District (Sondra K. Pardes, J.), dated August 1, 2005, deemed from a judgment of the same court entered December 17, 2009 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed without costs and the matter is remitted to the District Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,123.75, plus statutory interest and attorney’s fees.

This action by a provider to recover assigned first-party no-fault benefits was tried before a judge on July 11, 2005. At trial, the court stated, on the record, that “there’s a limited issue in this trial and that’s the issue of medical necessity.”
Defendant’s attorney confirmed this to be the case. The court also stated, “I don’t think there’s any dispute that a form – – a claim was submitted, that it was denied, the denial was timely, the issue was medical necessity. We all understand that.” The court asked for a copy of the “claim form,” which was apparently provided, but not entered into evidence.

Defendant proffered the testimony of its peer review doctor, who testified that the medical equipment billed for was not medically necessary. On cross-examination, the witness testified that he relied on several out-of-court documents in reaching his conclusion. He also testified that, in his report, he referred to a report from his board- certifying academy regarding one type of equipment at issue. Although plaintiff had previously stipulated to qualifying the witness as an expert, its attorney subsequently objected to this testimony on the ground that it was based upon records that were not in evidence and upon a study, the reliability of which had not been established. The court sustained the objection and ordered the testimony stricken.

Following the trial, the court dismissed plaintiff’s complaint, finding, in a written decision, that plaintiff “specifically declined to present a prima facie case.” We reverse.

Based upon the court’s statements that the only issue for trial was medical necessity and that a claim form had been submitted and timely denied, as well as defendant’s presentation of its witness instead of moving for judgment pursuant to CPLR 4401, we find that the parties agreed that the sole issue for trial was defendant’s defense of lack of medical necessity. The record [*2]reveals no basis, under the specific facts of this case, for the court’s finding that plaintiff was required to submit a claim form in order to establish, prima facie, “the health benefit’s medical necessity.”

On the other hand, on the scant record provided to this court, there is no basis to disturb the court’s decision to strike defendant’s witness’s testimony. Plaintiff advanced what was, in effect, a hearsay objection. Defendant failed to demonstrate either that the testimony did not rely on out-of-court documents for the truth of the matters stated therein, or that the documents were being relied upon for their truth but fell within an exception to the rule against hearsay. Consequently, we cannot say that it was an improvident exercise of discretion for the court to strike the testimony.

Accordingly, plaintiff is entitled to an award in the principal sum of $1,123.75. The matter is remitted to the District Court for the calculation of statutory interest, an assessment of attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and the entry of judgment.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: February 05, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

In consolidated actions, defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), dated February 11, 2009, which granted plaintiff’s motion to restore the actions to the calendar.

Per Curiam.

Order (Ben R. Barbato, J.), dated February 11, 2009, reversed, without costs, and motion denied.

Plaintiff commenced these actions to recover first-party no-fault benefits in March 2003. Plaintiff’s assignors were injured in the same August 2001 motor vehicle accident, which [*2]defendant asserts was staged, and the actions were therefore consolidated for trial in December 2004. On January 6, 2006, the actions (each of which sought approximately $1300) were marked off the trial calendar, and plaintiff moved to restore them in January 2009.

Because plaintiff moved to restore the actions more than one year after they were stricken from the calendar, plaintiff was required to demonstrate (a) the merits of its claims; (b) a lack of prejudice to defendant; (c) a lack of intent to abandon the action; and (d) a reasonable excuse for the delay in moving to restore the actions (Kaufman v Bauer, 36 AD3d 481, 482 [2007]). All four requirements must be met before an abandoned action can be restored (id.).

Even assuming, arguendo, that plaintiff satisfied the remaining criteria, it failed to offer a reasonable excuse for its three-year delay in seeking to restore the actions (see generally Okun v Tanners, 11 NY3d 762 [2008]). Plaintiff offered no excuse for its prior counsel’s failure to move to restore the actions during the 19-month period between the date the cases were marked off and the date prior counsel was relieved, and failed to adequately explain its substituted counsel’s 17-month delay in moving to restore. Accordingly, plaintiff’s motion should have been denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: February 02, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered August 12, 2008. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. In opposition to defendant’s cross motion, plaintiff argued that the affidavits submitted by defendant were insufficient to prove the timely mailing of the denial of claim form. The Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. As limited by its brief, plaintiff appeals from so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the affidavits submitted by defendant were sufficient to establish that defendant’s denial of claim form, which denied plaintiff’s claim on the ground of lack of medical necessity, was timely mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Plaintiff’s remaining contentions were improperly raised for the first time on appeal.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 29, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 28, 2008, deemed from a judgment of the same court entered November 26, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 28, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,590.25.

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that it had timely denied plaintiff’s claims on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). Defendant appeals from the order of the Civil Court granting plaintiff’s motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, the affidavits submitted by defendant in opposition to plaintiff’s motion for summary judgment were insufficient to establish that plaintiff’s assignor had not appeared for IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, defendant failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 29, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 25, 2008. The judgment, entered pursuant to an order of the same court entered April 30, 2008 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,543.

ORDERED that the judgment is reversed without costs, so much of the order entered April 30, 2008 as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s second, third and fourth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon those causes of action are denied and the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion and cross-moved for summary judgment, arguing that plaintiff had failed to make a prima facie showing of its entitlement to judgment as a matter of law and that, in any event, the action was premature due to plaintiff’s failure to provide requested verification as to the claims underlying plaintiff’s second, third and fourth causes of action. Defendant also argued that it properly denied the claims underlying plaintiff’s first and fifth causes of action because plaintiff utilized the wrong billing code when it billed for such services. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding that defendant had failed to establish that its time to pay or deny plaintiff’s claims had been tolled since defendant’s follow-up verification requests were sent [*2]to plaintiff prior to the expiration of 30 full days after the initial requests for verification and that defendant failed to provide legal or factual support to demonstrate that plaintiff was not entitled to summary judgment upon its first and fifth causes of action. A judgment was subsequently entered, and this appeal by defendant ensued.

Defendant contends that plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law. Contrary to defendant’s contention, the affidavit by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). In addition, defendant’s argument that the affidavit of plaintiff’s billing manager was insufficient to establish that plaintiff had submitted the claims at issue to defendant lacks merit in light of the affidavit of defendant’s claims representative in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).

It is undisputed that defendant timely mailed its initial requests for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification requests, which were mailed on the 30th day after the initial verification requests but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2009]), “the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff’s action is premature” (id. at 865).

While defendant denied the claims underlying plaintiff’s first and fifth causes of action on the ground that plaintiff sought to recover in excess of the fee schedule by
” unbundling’ the service[s] into . . . separate bill[s]” even though such services “are considered part of the initial medical evaluation,” defendant did not submit an affidavit from someone with sufficient expertise to establish that ground as a matter of law or even to demonstrate the existence of a triable issue of fact with respect to the billing for such services (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]). As a result, defendant “failed to raise a triable issue of fact in admissible evidentiary form sufficient to warrant denial of summary judgment in favor of [plaintiff] on the [first and fifth] cause[s] of action” (Kingsbrook Jewish Med. Ctr., 61 AD3d at 23).

Accordingly, the judgment is reversed, so much of the order entered April 30, 2008 as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s second, third and fourth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon those causes of action are denied and the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action are granted on the ground that those causes of action are premature.

Pesce, P.J., Weston and Rios, JJ., concur. [*3]
Decision Date: January 29, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 22, 2008, deemed from a judgment of the same court entered September 29, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 28, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $233.70.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff summary judgment on so much of the claim as sought to recover the sum of $33.70 for services rendered on January 19, 2007, upon a search of the record, summary judgment is granted to defendant dismissing the complaint with respect to the remaining portion of plaintiff’s claim, which sought to recover the sum of $200, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees due on the award of $33.70.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment on a claim in the sum of $233.70, finding that defendant had failed to prove that of the $233.70 in dispute, $200 “was applied to the assignor’s [insurance policy] deductible.” The Civil Court further found that the remaining $33.70 in dispute was properly billed by plaintiff. Defendant argues on appeal that the Civil Court erred in awarding summary judgment to plaintiff and that, upon a search of the record, defendant should be granted summary judgment.

Contrary to defendant’s contention on appeal, the affidavit submitted by plaintiff’s billing manager was sufficient to comply with CPLR 4518 (see Art of Healing Medicine, P.C. v [*2]Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). In addition, plaintiff established that its billing manager had personally mailed the claim form to defendant, and defendant’s litigation representative conceded receipt of the claim form (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]).

In opposition to plaintiff’s motion, defendant submitted the affidavit of defendant’s litigation representative, which established that defendant’s denial of claim form was timely mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, said affidavit did not mention the bill for $33.70 for services rendered on January 19, 2007. Although defendant’s counsel asserted that such bill was denied as duplicative, since counsel did not establish that he possessed personal knowledge of the pertinent facts, defendant failed to demonstrate the existence of a triable issue of fact with respect thereto and, thus, plaintiff was properly awarded summary judgment with respect to said bill (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In contrast, defendant did demonstrate that the applicable insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] § 65-1.6) and that defendant timely denied $200 of the claim at issue due to said deductible (see Insurance Law § 5102 [b] [3]). Consequently, under the circumstances presented herein, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the complaint with respect to the bills totaling $200, which bills defendant had denied based upon the $200 deductible (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is granted in the sum of $33.70 for services rendered on January 19, 2007, upon a search of the record, defendant is awarded summary judgment dismissing the complaint insofar as it sought to recover upon the claims totaling $200, which sum satisfied the insurance policy’s deductible, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees upon said $33.70 bill pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: January 29, 2010