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 (Robin S. Garson, J.), entered August 8, 2008, deemed in part from a judgment of said court entered November 13, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to so much of the August 8, 2008 order as granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon its fourth through tenth causes of action and denied so much of defendant’s cross motion as sought summary judgment dismissing said causes of action, awarded plaintiff the principal sum of $1,113.03. The order, insofar as appealed from, denied so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s first, second and third causes of action.

ORDERED that the judgment is affirmed without costs; and it is further,

ORDERED that the order, insofar as appealed from, is modified by providing that so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s second and third causes of action is granted; as so modified, the order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon its fourth through tenth causes of action, and denied defendant’s cross motion for summary judgment dismissing the complaint. The instant appeal by defendant ensued. A judgment was subsequently entered awarding plaintiff the principal sum of $1,113.03 on its fourth through tenth causes of action.

Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established [*2]the mailing of the claims in question since he stated that he had personally mailed the claims (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). In addition, a review of the record indicates that plaintiff’s affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; 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]). Thus, insofar as is relevant to this appeal by defendant, plaintiff made out its prima facie entitlement to summary judgment.

While defendant argues that plaintiff was not entitled to summary judgment upon its fourth through tenth causes of action and that defendant was entitled to summary judgment dismissing said causes of action because defendant had timely denied the underlying claims based on the assignor’s failure to appear for independent medical examinations, defendant’s motion papers failed to establish that the assignor failed to appear for such examinations (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). Consequently, defendant failed to demonstrate its entitlement to judgment upon said causes of action or even to raise a triable issue of fact with respect thereto. Accordingly, plaintiff was entitled to summary judgment upon these causes of action (id.).

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s second and third causes of action, defendant established that the claims at issue in said causes of action were timely denied on the ground of lack of medical necessity based upon an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for such medical services (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing said causes of action, and the burden shifted to plaintiff to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Since plaintiff failed to do so, defendant was entitled to summary judgment dismissing plaintiff’s second and third causes of action (see 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]).

Defendant also contends that the Civil Court should have granted it summary judgment dismissing plaintiff’s first cause of action because defendant established that it had timely denied the claim on the ground that the fees charged were excessive and not in accordance with the workers’ compensation fee schedule. While defendant is not precluded from asserting said defense (cf. Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]), defendant failed to establish that the fees charged were in fact excessive. As a result, defendant is not entitled to summary judgment dismissing plaintiff’s first cause of action.

Accordingly, the judgment in favor of plaintiff is affirmed and the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary
judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s second and third causes of action.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: January 12, 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 7, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 7, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $656.91.

ORDERED that the judgment is reversed without costs, the order entered October 7, 2008 is vacated, plaintiff’s motion for summary judgment is denied and, upon searching the record, summary judgment is granted to defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground
that it had properly reimbursed plaintiff for licensed acupuncture services at the rate consistent with the amount paid for acupuncture services provided by licensed chiropractors. The Civil Court granted plaintiff’s motion, holding that defendant had failed to demonstrate that it had issued timely denials of the claims. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit 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 [*2]Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Defendant established through the affidavit of its claims division employee that it had timely mailed the denial of claim forms to plaintiff, by setting forth the office practices or procedures used to ensure that such items are properly addressed and mailed (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, 18 [App Term, 2d & 11th Jud Dists 2007]).

For the reasons stated in Great Wall Acupuncture, P.C. v GEICO Ins. Co. (___ Misc 3d ___, 2009 NY Slip Op 29467 [App Term, 2d, 11th & 13th Jud Dists 2009]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its licensed acupuncturist. Furthermore, since it is undisputed that defendant has fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the action (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41, 43 [App Term, 2d & 11th Jud Dists 2007]).

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 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 September 22, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 22, 2008 order 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 $292.94.

ORDERED that the judgment is reversed without costs, the order entered September 22, 2008 is vacated, plaintiff’s motion for summary judgment is denied and
defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to plaintiff commencing a new action.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action was premature, because it had been commenced before defendant had received responses to its outstanding verification requests. By order entered September 22, 2008, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant’s appeal from said order is deemed to be from the judgment which was subsequently entered pursuant thereto (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit 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]). Contrary to the finding of the Civil Court, the affidavit of defendant’s claim representative sufficiently established that defendant had timely mailed its request and follow-up request for verification to plaintiff (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, 18 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff did not demonstrate that it had provided defendant, prior to the [*2]commencement of the action, with the verification, the 30-day period within which defendant was required to pay or deny the claims did not commence to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]). Thus, plaintiff’s action is premature (Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]).

Accordingly, the judgment is reversed, the order entered September 22, 2008 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to plaintiff commencing a new action.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 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 8, 2008. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment with respect to plaintiff’s second and third causes of action. The appeal is deemed to be from a judgment of the same court entered November 5, 2008 which awarded plaintiff the principal sum of $708.37 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s
second and third causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon said causes of action are denied and the matter is remitted to the Civil Court for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s second and third causes of action. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit 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]).

Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim forms, which denied plaintiff’s claims on the grounds that the supplies provided were medically unnecessary and that the fees charged by plaintiff were excessive (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]). In opposition to the branch of plaintiff’s [*2]motion for summary judgment upon plaintiff’s second cause of action, defendant raised a triable issue of fact by annexing an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s opinion that the medical supplies at issue in said cause of action were not medically necessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In addition, in opposition to the branch of plaintiff’s motion seeking summary judgment upon plaintiff’s third cause of action, defendant established that there was an issue of fact as to whether the fees charged by plaintiff were excessive.

Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s second and third causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon said causes of action are denied and the matter is remitted to the Civil Court for all further proceedings.
Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 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 (Sylvia G. Ash, J.), entered April 23, 2007. The order, insofar as appealed from as limited by the brief, granted plaintiff’s cross motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered August 30, 2007 which awarded plaintiff the principal sum of $791.92 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order entered April 23, 2007 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court entered April 23, 2007 as granted plaintiff’s cross motion for summary judgment. The appeal is deemed to be from the judgment that was subsequently entered pursuant to said portion of the order (see CPLR 5501 [c]).

Plaintiff’s cross motion for summary judgment was supported by an affidavit of an employee of a third-party billing company who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the annexed documents were admissible pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Psychology YM, P.C. v Nationwide Mut. Ins. Co., 24 Misc 3d 140[A], 2009 NY Slip Op 51634[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 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]). Accordingly, the judgment is reversed, so much of the April 23, 2007 order as granted plaintiff’s cross motion for summary judgment is vacated [*2]and plaintiff’s cross motion for summary judgment is denied.

In light of the foregoing, we reach no other issue.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from a judgment of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered on or about June 20, 2008, after a nonjury trial, in favor of defendant dismissing the complaint.

Per Curiam.

Judgment (Julia I. Rodriguez, J.), entered on or about June 20, 2008, reversed, with $30 costs, complaint reinstated, and judgment directed in favor of plaintiff in the principal sum of $3,072.08.

Civil Court erred in dismissing this action by plaintiff to recover first-party no-fault benefits at the close of the trial on the ground that plaintiff failed to file proof of service of the summons and complaint on defendant. At no point in the action did defendant assert that plaintiff failed to file an affidavit of service and, therefore, defendant waived any objection on that ground (see generally Ballard v HSBC Bank USA, 6 NY3d 658 [2006]; Harris v Niagara Falls Bd. of Educ., 6 NY3d 155 [2006]). In any event, the failure to file an affidavit of service under the former commencement-by-service system that governed when this action was commenced (see former CCA 409) did not warrant dismissal of the action; rather, such failure was an irregularity that was correctable nunc pro tunc (see former CCA 411; see also Lumberman’s Mut. Cas. Co. v Temco Serv. Indus., 209 AD2d 296 [1994]).

With respect to the merits of plaintiff’s action, as Civil Court properly recognized, plaintiff established a prima facie case to recover the first-party no-fault benefits it sought in its complaint. Since defendant failed to adduce any evidence on the issue of the medical necessity of the services rendered to plaintiff’s assignor, defendant’s only purported defense at trial, we direct judgment in plaintiff’s favor for the principal amount sought in the complaint.

We do not pass upon plaintiff’s request for statutory interest and attorneys’ fees, issues not reached below. Our disposition of this appeal is without prejudice to renewal of these issues in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 11, 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 (Carolyn E. Wade, J.), entered December 9, 2008. The order, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is modified by adding thereto a provision that in the event plaintiff fails to file proof with the Civil Court of an application to the Workers’ Compensation Board within 90 days of the date of the order entered hereon, the Civil Court shall grant defendant’s motion for summary judgment dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. The sole issue raised by plaintiff on appeal is whether defendant proffered sufficient evidence to demonstrate the existence of an issue of fact as to whether plaintiff’s assignor was injured while acting within the course of his employment.

The application for no-fault benefits form, which was signed by plaintiff’s assignor under penalty of perjury, states that the assignor was in the course of his employment when he was injured, an admission that is “sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident. . ., which issue must be resolved in the first [*2]instance by the [Workers’ Compensation] Board” (A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75, 76-77 [App Term, 9th & 10th Jud Dists 2009] [citation omitted]; see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; see also Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]). In light of the foregoing, plaintiff’s remaining contentions lack merit.

In addition to staying the action pending an application to the Workers’ Compensation Board, the Civil Court’s order should have provided that in the event plaintiff fails to file proof with the Civil Court of an application to the Workers’ Compensation Board within 90 days, defendant’s motion for summary judgment dismissing the complaint is granted unless plaintiff shows good cause why the complaint should not be dismissed. We modify the order accordingly.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 30, 2009

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 (Fred J. Hirsh, J.), entered September 22, 2008. The order, insofar as appealed from as limited by the brief, sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC without determining the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC.

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC is treated as an application for leave to appeal from that portion of the
order, and leave to appeal from that portion of the order is granted (see UDCA 1702); and it is further,

ORDERED that the order, insofar as appealed from, is reversed without costs, the provision thereof which stayed the action is stricken, and the matter is remitted to the District Court for a determination of the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC.

In this action by providers to recover assigned first-party no-fault benefits for services rendered to their assignor in 2002, plaintiffs moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, for relief pursuant to CPLR 3124 and CPLR 3126. Plaintiffs appeal, as limited by their brief, from the order of the District Court insofar as it, without determining the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC (A.B. Med.), sua sponte, stayed the action as to A.B. Med, so that said plaintiff “can make application to the appropriate court for the appointment of a receiver or liquidating trustee.”

We note that no appeal lies as of right from a sua sponte order staying an action (see UDCA 1702 [a] [2]). However, we deem the notice of appeal to be an application
for leave to appeal and, for the reasons stated in A.B. Med. Servs., PLLC a/a/o
Beauliere v Travelers Ins. Co. ( Misc 3d , 2009 NY Slip Op 29510 [App Term, 9th & 10th Jud Dists 2009]), leave to appeal from so much of the order as, sua sponte, stayed the action with respect to A.B. Med. is granted, the order, insofar as appealed from, is reversed, said provision is stricken, and the matter is remitted to the District Court for a determination of the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med.

In remitting the matter for determination of the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med., we note that the court similarly did not pass upon the merits of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by A.B. Med.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: December 23, 2009

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 (Carolyn E. Wade, J.), entered September 30, 2008. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered November 5, 2008 which awarded plaintiff the principal sum of $2,693.12 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and the matter is remitted to the Civil Court for all further
proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. As limited by its brief, defendant appeals from so much of the order as granted plaintiff’s motion for summary judgment. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]). On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit 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]).

Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim forms, which denied plaintiff’s claim on the ground that the services rendered were medically unnecessary (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic [*2]Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Also annexed to the motion papers were affirmed peer review reports which set forth a factual basis and medical rationale for the peer reviewers’ opinions that the medical services provided were not medically necessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiff’s motion for summary judgment should have been denied due to the existence of an issue of fact as to medical necessity.

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2009

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 September 17, 2008. The order, insofar as appealed from, denied the branch of defendant’s motion seeking to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992.

ORDERED that the order, insofar as appealed from, is reversed without costs and the branch of defendant’s motion seeking to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992 is granted.

In this action to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992, on the ground that plaintiff lacked standing to recover upon said claim because the claim form submitted to defendant identified only a physician as the provider and it neither referenced plaintiff, a professional services corporation, to whom the assignor had assigned his benefits, nor set forth the provider’s relationship to plaintiff. In denying defendant this relief, the Civil Court noted that the claim form contained a handwritten notation, “Bedford Park [sic],” in parentheses, alongside the name of the physician, in the portion of the form labeled provider, and plaintiff had annexed a copy of the assignment in favor of plaintiff as an exhibit to the cross motion brought by plaintiff. Defendant appeals from so much of the order as denied the branch of its motion seeking to dismiss plaintiff’s claim seeking the sum of $2,992.

The claim form at issue sought to recover payment on behalf of the physician who rendered the services and not on behalf of plaintiff. Indeed, while the handwritten notation on the claim form refers parenthetically to “Bedford Park Neurology,” this is not the name of plaintiff professional corporation. Consequently, plaintiff’s belated attempt to establish that the claimant physician was either an employee or principal of plaintiff, and that the claim form contains misinformation, is unavailing (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2008]). Plaintiff failed to submit a claim form which entitled it to payment, and may not correct the allegedly erroneous claim form once [*2]litigation has commenced (id.; cf. Davydov v Progressive Ins. Co., 25 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branch of defendant’s motion seeking to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992 should have been granted (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 23, 2009