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 (Jack M. Battaglia, J.), entered May 22, 2006, deemed from a judgment entered June 29, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 22, 2006 order granting plaintiff’s motion for summary judgment to the extent of awarding plaintiff partial summary judgment and denying, in effect as academic, defendant’s cross motion to compel depositions, awarded plaintiff the principal sum of $3,000.75.

Judgment reversed without costs, order entered May 22, 2006 vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for determination of defendant’s cross motion to compel depositions.

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 a corporate officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents annexed to the motion papers were plaintiff’s business records. 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 an order, pursuant to CPLR 3124 and 3126, to compel depositions. The court below granted partial summary judgment to plaintiff and denied defendant’s cross motion as academic. 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 [*2]motion papers. We agree. The affidavit submitted by plaintiff’s 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 Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Inasmuch as the lower court denied, in effect as academic, defendant’s cross motion to compel depositions as a result of its conclusion that plaintiff was entitled to partial summary judgment, the matter is remanded to the court below for a determination of defendant’s cross motion.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 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 September 28, 2006, deemed from a judgment entered on December 8, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 28, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,532.04.

Judgment reversed without costs, so much of the order entered September 28, 2006 as granted plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for all further proceedings.

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 summary judgment. A judgment was subsequently entered. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s president, 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 president 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 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 [*2]Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.

Turning to the merits of defendant’s cross motion for summary judgment, we are of the opinion that the court below correctly denied same. Defendant argued that plaintiff was ineligible to receive reimbursement for no-fault benefits since at the time that the services billed for were rendered, plaintiff was a fraudulently incorporated
professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). In support of said contention, defendant annexed the transcript of an examination under oath of plaintiff’s owner. While said individual denied knowledge of many aspects of the everyday operations of plaintiff, his testimony was inadequate to establish, as a matter of law, that plaintiff is ineligible for reimbursement of no-fault benefits on the ground that plaintiff’s business manager, a non-physician, was the true owner of plaintiff (see id.; Boston Post Rd. Med. Imaging, P.C. v Progressive Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51173[U] [App Term, 9th & 10th Jud Dists 2007]). Accordingly, the court below properly denied defendant’s cross motion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 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 (Bernard J. Graham, J.), entered August 4, 2006. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment denied and defendant’s cross motion for summary judgment dismissing the complaint granted.

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 summary judgment. The instant appeal by defendant ensued.

On appeal, defendant asserts that 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 and that, as a result, plaintiff failed to make a prima facie case. We agree. The affidavit submitted by plaintiff’s 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 is denied.

Defendant’s cross motion for summary judgment should have been granted. Defendant demonstrated that it timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed [*2](Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]), and defendant’s affirmed peer review report and the affidavit of its peer review chiropractor established prima facie that there was no medical necessity for the equipment provided by plaintiff. Since plaintiff failed to rebut said showing, defendant was entitled to summary judgment dismissing the complaint (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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]).

Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 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 (Diccia T. Pineda-Kirwan, J.), entered June 16, 2006, deemed from a judgment entered on September 11, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 16, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,253.50.

Judgment reversed without costs, so much of the order entered June 16, 2006 as granted plaintiff’s motion for summary judgment upon its second cause of action
vacated, defendant’s cross motion for summary judgment granted to the extent of dismissing the second cause of action, and matter remanded to the court below for the calculation of statutory interest and attorney’s fees upon the remaining sum of $590 awarded plaintiff.

Defendant’s argument that plaintiff did not prove a prima facie case in this action to recover assigned first-party no-fault benefits because plaintiff did not prove that the supplies furnished to plaintiff’s assignor were provided pursuant to a prescription from a health care provider lacks merit. 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we do not otherwise pass upon the propriety of the determination by the court below with respect thereto. [*2]

The affidavit submitted by defendant’s litigation examiner was sufficient to give rise to a presumption that the verification requests and denial of claim forms at issue were 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. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the litigation examiner conceded that the verification requested concerning plaintiff’s claim for $590 was received on March 19, 2001 and that the denial of claim form was not mailed until April 19, 2001, thereby rendering the denial of claim form untimely as a matter of law and precluding defendant from interposing a defense of lack of medical necessity as to this claim (see Insurance Department Regulations [11 NYCRR] § 65.15 [g], now [11 NYCRR] § 65-3.8). In light of the foregoing, plaintiff was entitled to summary judgment upon its first cause of action.

Defendant’s timely denial of claim form as to the claim for $1,663.50 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. Such a denial of claim form is sufficient to avoid preclusion of the defense of 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 and in support of its cross motion for summary judgment, defendant annexed an affirmed peer review report which found that the supplies at issue were not medically necessary, thereby establishing defendant’s prima facie entitlement to summary judgment dismissing plaintiff’s second cause of action. Inasmuch as plaintiff offered no medical evidence to rebut defendant’s prima facie case, plaintiff’s motion for summary judgment on its second cause of action should have been denied and defendant should have been granted summary judgment dismissing said cause of action (see A Khodadadi Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due on plaintiff’s claim for $590 pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 21, 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 (Gerald Dunbar, J.), entered March 21, 2006, deemed from a judgment entered on April 13, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 17, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,312.75.

Judgment reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for all further proceedings.
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 summary judgment. A judgment was subsequently entered. The instant appeal by defendant ensued.
On appeal, defendant asserts that the affidavit by plaintiff’s billing manager, 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 [*2]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 is denied.
Defendant’s contention that it was entitled to summary judgment upon its cross motion because plaintiff failed to serve responses to defendant’s timely initial and follow-up verification requests lacks merit. The affidavit submitted by defendant stated that it was defendant’s standard office practice and procedure to stamp the date on which its verification requests were mailed in the upper right hand corner of the requests and that the initial and follow-up verification requests were timely mailed on December 2, 2004 and January 11, 2005, respectively. However, the initial and follow-up verification requests annexed to defendant’s cross motion were both date-stamped December 2, 2004 in the upper right hand corner. Thus, the documentary proof annexed to defendant’s cross motion was insufficient to give rise to a presumption that the follow-up verification request was timely mailed pursuant to defendant’s professed standard office practice and procedure (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; PDG Psychological, P.C. v Lumbermans Mut. Cas. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51343[U] [App Term, 2d & 11th Jud Dists 2007]; Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co., 17 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, defendant’s cross motion for summary judgment was properly denied.
Pesce, P.J., and Rios, J., concur.
Decision Date: February 21, 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 (Anna Culley, J.), entered August 12, 2005, deemed from a judgment entered on November 29, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 12, 2005 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,404.30.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment granted to the extent of awarding it partial summary judgment on its claim for $270, and matter remanded to the
court below for a calculation of statutory interest and attorney’s fees thereon and for all further proceedings on the remaining claims.

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

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

The NF-3 forms submitted in support of plaintiff’s motion for summary judgment regarding two of its claims ($630 and $694.30) identified the treating provider as Kimer Arkady and under the “Business Relation” category therein, a “V” was placed in the box labeled “Independent Contractor.” It is well settled that “[w]here a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a provider’ of the health care services [*2]rendered within the meaning of 11 NYCRR 65.15 (j) (1) (now 11 NYCRR 65-3.11[a]) and is therefore not entitled to recover direct payment’ of assigned no-fault benefits from the insurer . . . .” (Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51288[U] [App Term, 2d & 11th Jud Dists 2006] [citations omitted]). Consequently, plaintiff was not entitled to summary judgment on its claims for the sums of $630 and $694.30.

Furthermore, plaintiff was not entitled to summary judgment on its claim for the sum of $810. Defendant established that this claim was timely denied on the ground, inter alia, that the fees charged for the services provided were excessive and not in accordance with the Workers’ Compensation fee schedule. Accordingly, said defense raised a triable issue of fact (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]; Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50856[U] [App Term, 2d & 11th Jud Dists 2005]).

Turning to plaintiff’s claim for the sum of $270, since defendant failed to pay or deny the claim within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]) and failed to establish that such period was extended by its issuance of a timely request for verification (Insurance Department Regulations [11 NYCRR] § 65-3.5 [a], [b]), defendant was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). While defendant was not precluded from raising its defense that the assignor’s injuries were not causally related to the accident despite its untimely denial (see Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists 2006]), the affidavit submitted by defendant’s investigator was insufficient to demonstrate that defendant’s defense of a lack of nexus between the accident and the injuries sustained by plaintiff’s assignor was based upon a “founded belief that the 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]). Thus, defendant failed to establish the existence of a triable issue of fact with respect to this claim.

Accordingly, plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $270 claim, and the matter is remanded to the court below for a calculation of statutory interest and attorney’s fees thereon and for all further proceedings on the remaining claims.

Pesce, P.J., and Rios, J., concur. [*3]
Decision Date: February 21, 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 (Timothy J. Dufficy, J.), entered October 28, 2005. The judgment confirmed three arbitration awards and awarded petitioner the principal sum of $10,300.80.

Judgment affirmed without costs.

Petitioner commenced compulsory arbitration proceedings against respondent, pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.11 (see Insurance Law § 5105 [b]), seeking reimbursement in the amount of $10,300.80 for no-fault benefits paid to three claimants. The arbitrator issued three awards in favor of petitioner. Respondent did not seek to vacate or modify the awards, but submitted opposition to the petition to confirm said awards. The court below granted the petition, ruling that, inter alia, respondent failed to seek to vacate the arbitration awards within the statutory period pursuant to CPLR 7511. A judgment was entered and the instant appeal ensued.

As a preliminary matter, we note that respondent was entitled to make its arguments for vacating the arbitration awards in opposition to a petition to confirm the awards, even though the statutory 90-day period in which to seek vacatur of the arbitration awards had expired (see Matter of Brentnall v Nationwide Mut. Ins. Co., 194 AD2d 537 [1993]; State Farm Mut. Ins. Co. v Fireman’s Fund Ins. Co., 121 AD2d 529 [1986]).

Upon a review of the record, we find that the instant awards in the compulsory arbitration proceeding were supported by the evidence (see Matter of Motor Veh. Acc. Indem. Corp. v [*2]Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005]). In the awards, the arbitrator indicated that he had considered, inter alia, respondent’s affirmative defenses and the police report. Accordingly, it cannot be said that the
arbitration awards were arbitrary and capricious or unsupported by any reasonable hypothesis. Consequently, the judgment is affirmed.

Weston Patterson, J.P. and Rios, J., concur.
Decision Date: February 08, 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 (Sylvia G. Ash, J.), entered October 11, 2006, deemed from a judgment entered September 11, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 11, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $5,416.42.

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. A judgment was subsequently entered.
On appeal, defendant asserts 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 employee was insufficient to establish that said employee 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 [*2]Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.
In view of the foregoing, we reach no other issue.
Pesce, P.J., and Rios, J., concur.
Decision Date: February 08, 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 (Gerald Dunbar, J.), entered June 7, 2006, deemed from a judgment entered July 31, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 7, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,791.73.

Judgment reversed without costs, so much of the order entered June 7, 2006 as granted plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for all further proceedings.

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 summary judgment. The instant appeal by defendant ensued.

On appeal, defendant contends, inter alia, that 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 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 corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s [*2]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 is denied.

Defendant cross-moved for summary judgment dismissing the complaint on the ground that it timely denied plaintiff’s claims based on a lack of medical necessity as set
forth in affirmed peer review reports. Plaintiff’s contention that defendant was not entitled to summary judgment because its NF-10 denial forms are fatally defective lacks merit (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]). However, defendant failed to establish that its denial of claim forms were timely since defendant admittedly mailed its NF-10 denial forms more than 30 days following its receipt of the claim forms (Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]) without also demonstrating that its time to pay or deny same was tolled pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.8 (a) (1). Accordingly, defendant’s cross motion for summary judgment was properly denied since defendant failed to demonstrate that its defense of lack of medical necessity was not precluded.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 08, 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.), dated July 19, 2006, deemed from a judgment entered November 14, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 19, 2006 order granting plaintiff’s cross motion for summary judgment and denying, in effect as academic, defendant’s motion to compel depositions, awarded plaintiff the principal sum of $4,670.12.

Judgment reversed without costs, order dated July 19, 2006 vacated, plaintiff’s cross motion for summary judgment denied and matter remanded to the court below for determination of defendant’s motion to compel depositions.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for an order, pursuant to CPLR 3124 and 3126, to compel depositions of plaintiff, plaintiff’s assignor and the treating physician, and plaintiff cross-moved for summary judgment. Plaintiff’s cross motion was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. The affidavit stated in a conclusory manner that the documents annexed thereto were plaintiff’s business records. Defendant opposed plaintiff’s cross motion. The court granted plaintiff’s cross motion for summary judgment and denied, in effect as academic, defendant’s motion to compel depositions. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate officer, submitted in [*2]support of plaintiff’s cross 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 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 cross motion for summary judgment is denied.

Inasmuch as the lower court denied defendant’s motion to compel depositions as a result of its conclusion that plaintiff was entitled to summary judgment, the matter is remanded to the court below for a determination of defendant’s motion.

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

Pesce, P.J., and Rios, J., concur.
Decision Date: February 08, 2008