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, Kings County (Genine D. Edwards, J.), entered June 19, 2007. The order denied plaintiffs’ motion for summary judgment.

Order affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition, defendant argued, inter alia, that plaintiff was not entitled to summary judgment because there was an issue of fact as to whether the assignor’s injuries arose out of an insured incident. The court below denied plaintiffs’ motion, finding that the affidavit executed by plaintiffs’ medical billing manager was insufficient to lay a foundation for the admission, as business records, of the documents annexed to plaintiffs’ moving papers. This appeal by plaintiffs ensued.

The affidavits submitted by plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted the claim forms, setting forth the facts and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; cf. Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The burden, therefore, shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Upon a review of the record, we find that the affidavits submitted by defendant’s investigators were sufficient to demonstrate that defendant possessed a “founded belief that the [*2]alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997], supra; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Consequently, the order denying plaintiffs’ motion for summary judgment is affirmed, albeit on other grounds, and we reach no other issue.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008

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, Richmond County (Johnny Lee Baynes, J.), entered March 16, 2007, deemed from a judgment of said court entered April 23, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 15, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $826.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a medical equipment provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant asserted
that the medical equipment furnished by plaintiff was not medically necessary as per a peer review report. The court granted plaintiff’s motion for summary judgment, and defendant appeals.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

The affidavit submitted by defendant’s claims representative was sufficient to give rise to a presumption that the denial of claim form at issue was 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]). Since defendant’s timely denial of claim form stated that the claim was denied pursuant to a peer review which found that the supplies furnished by plaintiff to its assignor were not medically necessary, it is sufficient to avoid preclusion of the defense of [*2]lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). In opposition to plaintiff’s motion for summary judgment, defendant annexed an affidavit by the chiropractor who executed the peer review report which set forth a factual basis and medical rationale for his opinion that the medical supplies at issue were medically unnecessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

To the extent defendant asks this court to search the record and grant it summary judgment, we decline to do so (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Rios, J.P., and Pesce, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : RIOS, J.P., PESCE and GOLIA, JJ.
ORTHOTIC SURGICAL & MEDICAL SUPPLY, INC.
as assignee of LUNA YARITZA,

Respondent,

-against- [*3]
GEICO INS. CO.,

Appellant.

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.

I do not believe this Court can choose to abrogate its responsibility to pass upon the most fundamental and pre-eminent issue to be determined in any litigation, that being whether or not the plaintiff has established a prima facie case (see Uptodate
Med. Serv., P.C v Lumbermens Mut. Cas. Co., Misc 3d , 2008 NY Slip
Op 51502[U] [App Term, 2d & 11th Jud Dists 2008] [dissenting op by Golia, J.]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Decision Date: September 02, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a decision of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), dated August 15, 2006, deemed from a judgment of the same court entered January 11, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,228.36.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that plaintiff proved its prima facie case, that defendant timely and properly denied the claims and that the claims were denied based upon an injury causation analysis prepared by defendant’s expert witness. The sole issue at trial was whether plaintiff’s assignor’s alleged injuries were caused by the accident. The only witness was defendant’s expert, who testified, without objection, that the force of the impact was minimal and that plaintiff’s assignor’s injuries could not have been caused by the accident. He further stated that his opinion was based upon his review of the police accident report, which included statements by the drivers of the vehicles, photographs of the vehicles and a repair estimate. The court entered judgment for plaintiff, holding that because the expert’s testimony and report relied almost exclusively upon statements and documents which were hearsay, defendant failed to sustain its burden of proof. This appeal by defendant ensued.

“[A]n expert may rely on out-of-court material if it is of a kind accepted in the profession as reliable in forming a professional opinion’ ” (Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984], quoting People v Sugden, 35 NY2d 453, 460 [1974]). The proponent of such testimony may satisfy its “burden of showing acceptance in the profession . . . through the testimony of a qualified expert” (People v Goldstein, 6 NY3d 119, 124-125 [2005]). In the [*2]instant case, defendant did not elicit any testimony from its expert which could support a conclusion that the material he relied upon in forming his opinion was “of a kind accepted in the profession as reliable in forming a professional opinion” (Goldstein, 6 NY3d at 125; see also Sugden, 35 NY2d at 460). Consequently, the testimony of the expert witness and his report were inadmissible (Hambsch, 63 NY2d at 726).

Although defendant contends that it was nevertheless entitled to judgment dismissing the complaint because plaintiff did not object to the testimony by defendant’s expert, “[n]o judgment, even in a small claims action, can rest entirely on hearsay evidence” (Zelnik v Bidermann Indus. U.S.A., 242 AD2d 227, 228 [1997]; see also Arnold Herstand & Co. v Gallery: Gertrude Stein, Inc., 211 AD2d 77 [1995]; Levins v Bucholtz, 2 AD2d 351 [1956]; Prince, Richardson on Evidence § 8-108 [Farrell 11th ed] [citations omitted]). Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008

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, Kings County (Genine D. Edwards, J.), entered January 24, 2007. The order granted defendant’s motion to sever multiple causes of action.

Order affirmed without costs.

Plaintiff commenced this action to recover no-fault benefits as assignee of three individuals. Defendant moved, pursuant to CPLR 603, to sever the causes of action into separate actions, arguing that there are three separate and distinct claims involving different questions of fact and law. The court below granted the motion. This appeal by plaintiff ensued.

The decision to grant severance (see CPLR 603) is an exercise of judicial discretion which, in the absence of a party’s showing of prejudice to a substantial right should not be disturbed on appeal (King’s Med. Supply, Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U] [App Term, 2d & 11th Jud Dists 2007]). In the instant matter, the claims arose out of three separate motor vehicle accidents and three insurance policies were at issue. The particular facts relating to each claim at issue are likely to raise few, if any, common issues of law or fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]; Ladim DME, Inc. v GEICO Gen. Ins. Co., 15 Misc 3d 139[A], 2007 NY Slip Op 50997[U] [App Term, 2d & 11th Jud Dists 2007]; S.I.A. Med. Supply Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U] [App Term, 2d & 11th Jud Dists 2005]; Metro Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 136[A], 2005 NY Slip Op 50238[U] [App Term, 2d & 11th Jud Dists 2005]). A single trial involving different sets of facts regarding three underlying accidents and injuries would pose the danger of being unwieldy [*2]and confusing (see King’s Med. Supply, Inc. v GEICO Cas. Ins. Co., 14
Misc 3d 136[A], 2007 NY Slip Op 50232[U] [2007], supra). Accordingly, the order granting defendant’s motion to sever the causes of action is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008

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, Kings County (Loren Baily-Schiffman, J.), entered May 30, 2006, deemed from a judgment of the same court entered June 14, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 30, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,839.34.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant asserts that the affidavit by plaintiff’s officer, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s officer was insufficient to demonstrate that he 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, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied. [*2]

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeals from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered May 23, 2006, and from a judgment of the same court entered December 26, 2006. The order granted plaintiff’s motion for summary judgment. The judgment, entered pursuant to the May 23, 2006 order, awarded plaintiff the principal sum of $7,791.06.

Appeal from order dismissed.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

At the outset we note that the appeal from the order entered May 23, 2006 is dismissed since the right of direct appeal therefrom terminated with the entry of the judgment (Matter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeal from the order are brought up for review on the appeal from the judgment.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing, inter alia, that plaintiff did not make a prima facie showing because the affidavit executed by its corporate officer did not establish that the claims were submitted to defendant. The court granted plaintiff’s motion for summary judgment, and a judgment was subsequently entered. This appeal by defendant ensued.

A provider establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). A provider generally establishes the submission of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim [*2]form was received by the addressee. The presumption may be created either by proof of actual mailing or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). Here, the affidavit of plaintiff’s corporate officer and the post office ledger annexed thereto were insufficient to establish that plaintiff mailed the claims to defendant (see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; IVB Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 126[A], 2006 NY Slip Op 51660[U] [App Term, 2d & 11th Jud Dists 2006]). Moreover, plaintiff’s attorney’s affirmation consisted of allegations by a person without personal knowledge that the claims were actually mailed to defendant and, as such, is unsubstantiated hearsay which has no probative value (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455 [2006]). In addition, as argued by defendant, the affidavit by plaintiff’s corporate officer, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment. Consequently, plaintiff’s motion for summary judgment is denied.

In view of the foregoing, we do not reach defendant’s remaining contention.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008

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, Kings County (Genine D. Edwards, J.), entered August 23, 2006, deemed from a judgment of the same court entered September 11, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 23, 2006 order denying plaintiff’s motion for summary judgment and, upon a search of the record, granting defendant summary judgment dismissing the complaint, dismissed the complaint.

Judgment reversed without costs and so much of the order as granted defendant summary judgment dismissing the complaint vacated.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that it timely denied plaintiff’s claims based upon peer review reports which determined that there was a lack of medical necessity for the services rendered by plaintiff. In addition to the peer review reports, defendant submitted an affidavit executed by the chiropractor who performed the peer reviews. The court denied plaintiff’s motion for summary judgment and, upon a search of the record, granted summary judgment to defendant dismissing the complaint. This appeal by plaintiff ensued. A judgment was subsequently entered.

Contrary to plaintiff’s contention, defendant’s NF-10 denial of claim forms were not “vague” and “misleading” as to the insurer’s basis for denial. Each NF-10 form stated that defendant was paying nothing upon the claim and that the entire sum remained in dispute. In addition, the explanation of benefits forms which accompanied defendant’s NF-10 forms unequivocally stated that each claim was denied based upon a peer review report which also accompanied the applicable NF-10. As a result, the NF-10 forms were sufficient to apprise plaintiff of the reason for the denial of plaintiff’s claims (see A.B. Med. Servs., PLLC v Liberty [*2]Mut. Ins. Co., 39 AD3d 779 [2007]).

While the court has the power to award summary judgment to a nonmoving party predicated upon a motion for that relief by another party (see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]), here the issue of medical necessity was not the subject of plaintiff’s motion for summary judgment (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). As a result, the court improvidently exercised its discretion when it searched the record and awarded defendant summary judgment dismissing the action (see Whitman Realty Group, Inc. v Galano, 52 AD3d 505 [2008]; Ey v Mecca, 41 AD3d 534 [2007]; Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943 [1981]).

Plaintiff’s remaining contention is raised for the first time on appeal and we decline to reach it.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008

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 (Arthur F. Engoron, J.), entered June 21, 2006, deemed in part from a judgment of said court entered February 1, 2007 (see CPLR 5501 [c]). The order, insofar as appealed from as limited by the brief, denied plaintiff’s cross motion for summary judgment on its second cause of action. The judgment, entered pursuant to so much of the June 21, 2006 order as denied plaintiff’s cross motion for summary judgment on its first and third causes of action and granted defendant’s cross motion for summary judgment to the

extent of awarding defendant summary judgment on plaintiff’s first and third causes of action, dismissed plaintiff’s first and third causes of action.

Judgment affirmed without costs.

Order, insofar as appealed from, modified by providing that plaintiff’s cross motion for summary judgment is granted to the extent of granting plaintiff summary judgment on its second cause of action, and matter remanded to the court below for the calculation of statutory interest [*2]and attorney’s fees thereon; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to three assignors, defendant moved, pursuant to CPLR 603, to sever plaintiff’s causes of action, plaintiff cross-moved for summary judgment, and defendant cross-moved for summary judgment. The court below granted defendant’s severance motion, denied plaintiff’s cross motion for summary judgment and granted defendant’s cross motion for summary judgment to the extent of granting defendant partial summary judgment with respect to plaintiff’s first cause of action (regarding assignor Andree Sarjoo) and third cause of action (regarding assignor Romelle Archer). Plaintiff appeals, arguing that it was entitled to summary judgment upon its three causes of action.

A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In addition, the affidavit submitted by a provider in support of its summary judgment motion must lay a sufficient foundation to establish that the annexed documents constitute evidence in admissible form (see e.g. Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms, and the affidavit of defendant’s “PIP Litigation 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]). Accordingly, plaintiff made a prima facie showing of its entitlement to summary judgment.

In opposition to plaintiff’s cross motion, and in support of its own cross motion, defendant asserted that, with respect to plaintiff’s claims for services rendered to Mr. Sarjoo (the first cause of action) and Mr. Archer (the third cause of action), it timely denied the claims in question on the ground that the services provided were not medically necessary based on affirmed peer review reports. Contrary to plaintiff’s contention, the conclusions of the peer review reports were not the result of a lack of documentation, as neither peer review doctor stated in his peer review report that his determination was based on a lack of documentation. Instead, both reports set forth a factual basis and medical rationale for the doctors’ opinions that the MRIs billed for were not medically necessary. Accordingly, since plaintiff did not rebut the evidence in support of defendant’s cross motion upon these causes of action, the court below properly granted defendant’s cross motion with respect to plaintiff’s first and third causes of action (see A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

With respect to plaintiff’s remaining cause of action to recover upon the claim for services rendered to Sean-Anthony Cherry (the second cause of action), defendant denied the claim based upon Mr. Cherry’s alleged failure to appear at scheduled examinations before trial (EUOs). Since the affidavit submitted by defendant was insufficient to establish Mr. Cherry’s nonappearance at said EUOs, defendant failed to raise a triable issue of fact (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; see also Midisland Med., PLLC v New York [*3]Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51983[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, contrary to the determination of the court below, plaintiff was entitled to summary judgment with respect to its second cause of action.

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

Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
CROSSBRIDGE DIAGNOSTIC RADIOLOGY, P.C.
a/a/o ANDRE SARJOO, SEAN-ANTHONY CHERRY
and ROMELLE ARCHER,

Appellant, [*4]

-against-
PROGRESSIVE INSURANCE COMPANY,

Respondent.

Golia, J., concurs in part and dissents in part, and votes to affirm the judgment, and the order insofar as appealed from, in the following memorandum:

I concur with the majority in its affirmance of the lower court’s denial of plaintiff’s cross motion for summary judgment as to the first and third causes of action and the granting of defendant’s cross motion for summary judgment as to the first and third causes of action, encompassing the dismissal of those causes of action. I dissent as regards the awarding of summary judgment to plaintiff with respect to the second cause of action.

With regard to the first and third causes of action, I agree with the majority’s finding that “contrary to plaintiff’s contention, the conclusions of the peer review reports were not the result of a lack of documentation.” I, nonetheless, disagree with the majority’s finding relating to the second cause of action regarding the sufficiency of notice to the assignor Mr. Sean-Anthony Cherry.

Defendant denied those claims upon the assertion that Mr. Cherry failed to appear at a scheduled examination before trial (EUO). The majority finds, and I agree, that the affidavit submitted by defendant was insufficient to establish, in admissible form, the fact that Mr. Cherry failed to appear at the EUO. Indeed, defendant’s affiant failed to specify how she obtained the information that Mr. Cherry had failed to appear. The majority then cites to the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720 [2006]) in support of its conclusion granting judgment to plaintiff.

I notably disagree with the majority in its reading of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (id.).

In that case, although the Appellate Division, Second Department, nominally affirmed the majority ruling of the Appellate Term, the court specifically rejected the artificial distinction my colleagues created between “pre” and “post” claims. More importantly, the Appellate Division held that, “The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1)” (Stephen Fogel Psychological, P.C., 35 AD3d at 722 [emphasis added]).

Inasmuch as the notices to appear for the EUO were sent directly to the assignor and, in addition, there is no affidavit from the assignor that he either appeared or that he did not receive such notice, the evidence of notice has not been rebutted (see A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire. Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Consequently, it is now incumbent upon plaintiff to establish, in admissible form, that the assignor complied with the condition precedent, that is the assignor’s submission to the EUO. [*5]

Indeed, this case is strikingly similar to Stephen Fogel Psychological, P.C. in that in both cases the defendant failed to establish, in admissible form, the assignor’s nonappearance, and the plaintiff similarly failed to meet its burden of establishing that it has met the condition precedent to creating the insurer’s liability (see also Quality Health Prods., Inc. v Progressive Ins. Co., ___ Misc 3d ___, 2008 NY Slip Op _____, No. 2007-148 Q C, decided herewith).

Accordingly, I would deny both cross motions for summary judgment relating to the second cause of action, as was done in Stephen Fogel Psychological, P.C..

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 (Diane A. Lebedeff, J.), entered January 12, 2007, deemed from a judgment of said court entered February 16, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 12, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,740.62.

Judgment reversed without costs, order entered January 12, 2007 vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted the motion and the instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant asserts that the affirmation of plaintiff’s officer, submitted in support of the motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. In opposition, plaintiff argues that it met its prima facie burden by demonstrating that a claim was submitted and that it was not timely paid and that, in any event, it submitted the affirmation of the treating doctor, who also signed the claim forms, rendering admission of the claim forms as business records unnecessary. [*2]

In Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]), this court held that, absent a sufficient foundation to demonstrate that the plaintiff’s claim forms constituted evidence in admissible form as business records, the “plaintiff failed to tender proof in evidentiary form to establish its prima facie case” (id. at 47). This court further noted that any admissions by the defendant regarding receipt of the plaintiff’s claim forms “did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form, which it failed to do” (id.; see also Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]).

We find that the affirmation submitted by the treating doctor, plaintiff’s officer, was not sufficient to establish a foundation for plaintiff’s claim forms. Contrary to plaintiff’s contention, defendant did not waive its objection to the admissibility of plaintiff’s claim forms by failing to raise it below (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]). To the extent plaintiff argues that it is possible to circumvent the requirement that said claim forms be submitted in admissible form by submitting the affirmation of the treating doctor, we need not reach that issue. Plaintiff’s doctor failed to sufficiently set forth the pertinent facts relevant to the claims. In light of the foregoing, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]; see also Dan Med., P.C., 14 Misc 3d at 47). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and said motion is denied.

Pesce, P.J., and Rios, J., concur.

Steinhardt, J., dissents in a separate memorandum.

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

To prevail on a motion for summary judgment in a no-fault claim, the plaintiff has the burden to demonstrate that the no-fault claim forms were submitted to the defendant and that the payment to the plaintiff is overdue (see Insurance Law § 5106 [a]; Fair Price Med Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). To meet this burden, the plaintiff is required to establish the admissibility of the no-fault claim forms by demonstrating that the forms are business records (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d and 11th Jud Dists 2006]). To qualify a document as a business record, three foundational requirements must be met: (1) that the document was made in the regular course of business; (2) that it is the regular course of business to make such documents or records; and (3) that the document or record was made at the time of the act or transaction or within a reasonable time thereafter (see CPLR 4518). [*3]

In the instant matter, Boris Kleyman, M.D., executed affirmations in support of plaintiff’s claims. In each, he stated “I am an officer of . . . Plaintiff . . . who treated the Assignor . . . and having reviewed the Assignor’s file, I am fully familiar with the facts and circumstances of this matter and make this affirmation based upon personal knowledge” (emphasis added). Plaintiff submitted additional affidavits in support of the motion, including one by Enrique Escala, the “Office Services Supervisor” for the attorneys who handle the processing of plaintiff’s no-fault claims. Said affidavit outlined the procedures employed by him with reference to the mailing of the documentation in question to defendant.

Contrary to the opinion expressed by my learned colleagues, I find that the documents submitted by plaintiff in support of the motion, taken in their totality, qualify as business records and that they clearly fulfill the requirements for admissibility as set forth in Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (14 Misc 3d 44 [2006], supra). Plaintiff, therefore, in my opinion, met its burden and is entitled to the granting of summary judgment in its favor.
Decision Date: August 19, 2008

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, Kings County (Delores J. Thomas, J.), entered November 3, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint.

Order modified by providing that defendant’s cross motion to dismiss the complaint is denied; as so modified, 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 to dismiss the complaint pursuant to CPLR 3211 (a) (5), based upon a Virginia court’s order rescinding the subject insurance policy. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint. Plaintiff appeals.
An objection based on CPLR 3211 (a) (5) must be raised either by motion made before service of the responsive pleading is required or in the responsive pleading (see CPLR 3211 [e]). As defendant did neither, its post-answer cross motion to dismiss should have been denied. [*2]
Turning to plaintiff’s motion for summary judgment, we note that defendant raised no issue below or on appeal with respect to plaintiff’s establishment of its prima facie case, and we therefore do not pass on the propriety of the determination of the court below with respect thereto.
In opposition to plaintiff’s motion, defendant made the same collateral estoppel argument it proffered in support of its cross motion to dismiss. It submitted a petition commencing an action in a Virginia court seeking a declaratory judgment voiding the subject insurance policy on the ground that the insured made material misrepresentations on his application for insurance including, inter alia, that he resided in, and his car was to be garaged in, Virginia. Defendant further submitted an uncertified order of a Virginia court, dated April 4, 2005, which provided that the subject insurance policy was “rescinded, void ab initio, and of no effect.”
We note at the outset that defendant may not invoke the doctrine of collateral estoppel against plaintiff herein because plaintiff was not a party to the Virginia proceeding, which was commenced by defendant herein against its insured. Prior to the commencement of the Virginia proceeding, plaintiff was assigned the instant claims by two eligible injured persons, neither of whom are the named insured but both of whom were allegedly eligible for benefits under said policy. Plaintiff was therefore not “afforded a full and fair opportunity to contest” the Virginia order, nor was it in privity with one who was (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485-487 [1979]). We find, however, that the submission of the aforementioned documents is sufficient to demonstrate a defense based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured accident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Thus, defendant has raised a triable issue of fact as to whether there was coverage under the subject insurance policy (see Hernandez v City of New York, 35 AD3d 812, 813 [2006]; Matter of Eagle Ins. Co. v
Singletary, 279 AD2d 56 [2000]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90
NY2d 195 [1997], supra). Therefore, plaintiff’s motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Rios, J.P., and Pesce, J., concur.
Golia, J., concurs in a separate memorandum.
Respondent.
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.
I do not believe this Court can choose to abrogate its responsibility to pass upon the most fundamental and pre-eminent issue to be determined in any litigation, that being whether or not [*3]the plaintiff has established a prima facie case (see Uptodate
Med. Serv., P.C v Lumbermens Mut. Cas. Co., Misc 3d , 2008 NY Slip
Op 51502[U] [App Term, 2d & 11th Jud Dists 2008] [dissenting op by Golia, J.]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Decision Date: August 19, 2008