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 (Lee A. Mayersohn, J.), entered April 12, 2007, deemed from a judgment of the same court entered May 4, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 12, 2007 order which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,124.

Judgment reversed without costs, so much of the order as granted 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 and denied defendant’s cross motion for, inter alia, summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant argues that the affidavit by plaintiff’s employee, 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 billing manager was insufficient to establish that she 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 v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied. [*2]

Turning to the merits of defendant’s cross motion for summary judgment, defendant based its denial of plaintiff’s claim upon an affirmed report of an independent medical examination (IME). The IME report did not address the necessity for medical supplies and, therefore, did not establish prima facie that the supplies provided by plaintiff were not medically necessary (cf. Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 19 Misc 3d 130[A], 2008 NY Slip Op 50534[U] [App Term, 2d & 11th Jud Dists 2008]; Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 139[A], 2008 NY Slip Op 50327[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant is not entitled to summary judgment upon its cross motion.

Pesce, P.J.,and Golia,J., concur

Steinhardt, J., concurs in a separate memorandum.

Steinhardt, J., concurs in the result in the following memorandum:

While I agree with the result reached by the majority, I do so for other reasons. I find that defendant has come forward with triable issues of fact sufficient to defeat plaintiff’s motion for summary judgment.
Decision Date: June 12, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an amended order of the Civil Court of the City of New York, Kings County (George J. Silver, J.) entered December 14, 2006. The amended order granted the petition to vacate a master arbitrator’s award and awarded petitioner the amount sought in the arbitration proceeding.

Amended order reversed without costs and petition to vacate the master arbitrator’s award denied.

SP Medical, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld the denial of its claim seeking reimbursement of assigned first-party no-fault benefits. By an amended order, the court granted the petition, and this appeal by the insurer ensued.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief. The Civil Court, in its amended order, stated that its decision was predicated upon the notice of petition and affirmation, as well as the exhibits that were annexed thereto. Although there is sufficient authority which supports the proposition that an “affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may, of course, serve as the vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form’, e.g. documents, transcripts” (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]), such an affirmation was not present in this case.
Petitioner submitted a document that was denominated an “Affirmation in Support.” Said document contained the following statements:

“The undersigned, an attorney duly admitted to practice law in the Courts of the State of New York, states as follows: [*2]
Affirmant is associated with the firm of Gary Tsirelman P.C., the attorney of record for the Petitioner” (emphasis added).

The last page of the document contains the printed name of petitioner’s law firm, Gary Tsirelman, P.C., as attorneys for petitioner. It also contains a signature line with an indecipherable pen marking, which purports to be a person’s signature. Immediately below this “signature” is a listing of three printed names, each one next to a small box to be “checked off.” However, not one of the three listed names has been “checked off” on this document. In addition, the document was not affirmed “to be true under the penalties of perjury” (CPLR 2106). Indeed, the attorney who signed the document, if that be the case, merely indicates that he or she “states as follows,” which is insufficient under the law (see Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137(A), 2006 NY Slip Op 50504 [U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, there is no proof of the name of the attorney who generated the document, and the document is insufficient as an affirmation.

In view of the foregoing, the petition to vacate the master arbitrator’s award is denied. We do not reach the remaining contentions.
Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 12, 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 (Johnny Lee Baynes, J.), entered September 28, 2005, deemed from a judgment entered November 27, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 28, 2005 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

Judgment affirmed without costs.

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

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

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

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

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

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 March 20, 2007. The order, insofar as appealed from, in effect, denied plaintiff’s motion for summary judgment.

Appeal dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, the court, in effect, denied plaintiff’s motion for summary judgment, finding that the requested relief was premature, and denied defendant’s cross motion for summary judgment. Plaintiff appealed from that part of the order which denied its motion for summary judgment.

Subsequent to the entry of the order appealed from, the Civil Court entered an order dated May 13, 2007 dismissing the action. The dismissal of the action rendered the instant appeal academic (see Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff’s appeal is dismissed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 28, 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.), dated June 30, 2006. The order denied the petition to vacate the master arbitrator’s award and granted the cross petition to confirm the award.

Order affirmed without costs.

Upon a review of the record, we find that the determination of the master arbitrator upholding the arbitrator’s award, which denied petitioner’s claim for assigned first-party no-fault benefits, had a rational basis and was not arbitrary and capricious (see e.g. Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633 [2008]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award and granted the cross petition to confirm the award.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 28, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 25, 2007. The judgment, entered pursuant to an order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $8,000.

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, plaintiff’s motion for summary judgment was supported by an affidavit executed by
plaintiff, an affirmation of plaintiff’s counsel and various documents annexed thereto. Plaintiff’s counsel submitted a copy of plaintiff’s claim form and purported to authenticate it. In opposition, defendant argued that plaintiff’s counsel did not lay a sufficient foundation to establish that what counsel represented to be plaintiff’s claim form was admissible as plaintiff’s business record. The court granted plaintiff’s motion for summary judgment. A judgment was subsequently entered pursuant thereto. This appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim form annexed to plaintiff’s moving papers. We agree. The affirmation of plaintiff’s counsel did not lay a [*2]sufficient foundation to establish that what counsel represented to be plaintiff’s claim form was admissible under the business records exception to the hearsay rule (see CPLR 4518; 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]). Accordingly, plaintiff’s motion for summary judgment should have been denied.

We decline defendant’s request to search the record and award it summary judgment dismissing the complaint (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Pesce, P.J., and Steinhardt, 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 : PESCE, P.J., GOLIA and STEINHARDT, JJ.
STEVEN STRUHL, M.D.
as assignee of JOHN CAPEHART,
Respondent,

-against-

ALEA NORTH AMERICA INSURANCE COMPANY,
Appellant.

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

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: May 27, 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 24, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order 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. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, holding that defendant established alack of medical necessity and that defendant’s denial of claim form interposing said defense was timely. The instant appeal by plaintiff ensued.

Since defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

Turning to the merits of defendant’s cross motion for summary judgment, defendant established that it paid $182.18 towards plaintiff’s $3,247.19 claim and timely denied the balance on the ground that the services rendered were not medically necessary based on an affirmed peer review report. Since the peer review report submitted by defendant in support of its cross motion established prima facie that the services rendered by plaintiff were not medically necessary and [*2]plaintiff did not present any evidence refuting defendant’s prima facie showing, the court below properly granted defendant’s cross motion for summary judgment dismissing the complaint (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

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

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 (Dolores L. Waltrous, J.), entered June 22, 2006. The order denied the petition to vacate the master arbitrator’s award.

Order modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

In this proceeding to vacate a master arbitrator’s award, the record reveals that the arbitrator denied petitioner’s claim for assigned first-party no-fault benefits based on a finding that the assignment of benefits was to an entity different from petitioner, and concluded that petitioner was without standing to seek reimbursement of no-fault
benefits. The master arbitrator upheld the arbitrator’s award as properly reached and supported by the evidence. In our view, the determination of the master arbitrator had a rational basis and was not arbitrary and capricious (Damadian MRI in Garden City v Windsor Group Ins., 2 Misc 3d 138[A], 2004 NY Slip Op 50262[U] [App Term, 2d & 11th Jud Dists 2004]; see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633 [2008]; see generally Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

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

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

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 (Thomas D. Raffaele, J.), entered February 23, 2006, deemed from a judgment entered January 10, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 23, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,758.40.

Judgment reversed without costs, so much of the order as granted 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, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s
counsel, an affidavit from plaintiff’s office services supervisor, and an unaffirmed, undated letter of medical necessity. In opposition, defendant argued, inter alia, that plaintiff’s affidavit failed to lay a proper foundation for the documents annexed to the motion papers and that, as a result, plaintiff failed to establish a prima facie case. In addition, defendant cross-moved for summary judgment based upon the failure of plaintiff’s assignor to appear for examinations under oath and upon plaintiff’s breach of a so-ordered discovery stipulation. The court below granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. This appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to its motion papers. We agree. The affidavit submitted by plaintiff’s office services supervisor was insufficient to establish 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 [*2]annexed to plaintiff’s moving papers. In any event, plaintiff failed to annex to its motion for summary judgment the claim forms upon which it sought to recover. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; AB Med. Servs, PLLC v Lancer Ins. Co., 13 Misc 3d 139[A], 2006 NY Slip Op 52241[U] [App Term, 2d & 11th Jud Dists 2006]; A.B. Med. Servs., PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists 2005]).

With respect to the merits of defendant’s cross motion for summary judgment, the court below correctly denied same since defendant failed to demonstrate as a matter of law its entitlement to summary judgment. Defendant did not demonstrate that plaintiff’s causes of action were premature (cf. Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). Further, contrary to defendant’s contention, the parties’ so-ordered stipulation does not entitle defendant to summary judgment since plaintiff’s time to provide the verified responses to defendant’s discovery demands was stayed during the pendency of plaintiff’s motion for summary judgment (see CPLR 3214 [b]; Reilly v Oakwood Hgts. Community Church, 269 AD2d 582 [2000]; John Eric Jacoby, M.D., P. C. v Loper Assocs., 249 AD2d 277 [1998]; cf. Vista Surgical Supplies Inc. v Progressive Cas. Ins. Co., 13 Misc 3d 141[A], 2006 NY Slip Op 52267[U] [App Term, 2d & 11th Jud Dists 2006] [so-ordered stipulation provided that the time to furnish discovery could not be extended without leave of court]).

In light of the foregoing, we do not reach defendant’s remaining contentions.

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

Golia, J., concurs in a separate memorandum.

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

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to 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.

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 (Genine D. Edwards, J.), dated July 13, 2006. The order denied the petition to vacate a master arbitrator’s award.

Order modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find that the determination of the master arbitrator upholding the arbitrator’s award, which denied petitioner’s claims for first-party no-fault benefits, had a rational basis and was not arbitrary and capricious (see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633 [2008]; Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see generally Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Indeed, until this court rendered its decision in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007], supra), there was no settled appellate law regarding an insurer’s reduction of the amount of fees charged by a licensed acupuncturist for acupuncture services rendered. Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon [*2]denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

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

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008