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 October 28, 2005, deemed an appeal from the judgment entered March 26, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the order entered November 10, 2005 which granted plaintiff’s unopposed cross motion for summary judgment, awarded plaintiff the principal sum of $12,125.52.

Appeal dismissed.

Since defendant failed to submit written opposition to plaintiff’s cross motion seeking summary judgment, that branch of the order which granted plaintiff’s cross motion for summary judgment was entered on default and defendant is not aggrieved thereby (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from the judgment, which was entered pursuant to said order, is dismissed.

Pesce, P.J., and Belen, J., concur.

Golia,J., concurs in a separate memorandum.

Golia, J., concurs in the following memorandum:

I concur with my colleagues in their ultimate determination that a default in responding to a motion must result in a denial of appellate review.

I, nevertheless, wish to address a misconception of the law in the decision and order of [*2]the lower court which granted summary judgment in favor of the plaintiff upon the default of the defendant in not responding to plaintiff’s motion.

The lower court initially held that plaintiff proved its prima facie case by means of establishing the timely receipt of the claims by submission of the defendant’s NF-10 denial forms.

That court then addressed the sufficiency of the NF-10 denial form and found that the “NF-10 is not specific and requires one to consider other documents not
included.” Inasmuch as the NF-10 denial specifically stated that the fees charged were
in “excess of the no-fault schedule,” it would seem to indicate that the “other documents” to which the lower court refers, is the no-fault fee schedule which allegedly was not attached to the defendant’s NF-10.

The question then presented is whether or not the failure to attach a copy of the no-fault fee schedule permits a court to grant a money judgment allegedly in excess of the amount permitted by Insurance Department no-fault regulations. I believe that it does not. In support, I look to CPLR 4511 (a) which requires that “[e]very court shall take judicial notice without request . . . of the official compilation of codes, rules and regulations of the state . . .” (see also People v Wiley, 59 Misc 2d 519 [1969]; People v Stuck, 54 Misc 2d 811 [1967]). These of course, include the regulations of the New York State Insurance Department.

Clearly, the lower court had no alternative but to take judicial notice of the Insurance Department regulations. Those regulations require that medical procedures are to be billed at the “workers’ compensation” rate (see Insurance Law § 5108 [a]). In addition, that section prohibits any providers of professional health services from demanding or even requesting any payment in excess of the charges provided by that section. This is not to say that the lower court did not have the power to require additional proof or to conduct a hearing, if necessary, in order to establish that the charges were in accordance with the “workers’ compensation” rate. I conclude what that court did not have the authority to do was to simply ignore those regulations and to grant judgment to the plaintiff for an amount which may be in excess of the amount permitted by the regulations.

An interesting and instructive decision concerning the history of the extent of proof required on issues involving judicial notice was written by Judge Pinto of the City Magistrate Court of New York, Rockaway Court, Borough of Queens in People v Lipoff (181 Misc 618 [1943]). In that case, a defendant was charged with selling meats above the ceiling prices set in a regulation by the U.S. Office of Price Administration.

Notwithstanding the prosecutor failing to provide the proper certification, that Judge held in 1943 that “courts must adopt and apply modern and common sense rules” and thereupon took judicial notice of the federal regulation (People v Lipoff, 181 Misc at 622).

In the year 2007, we can conclude that it is still the “modern and common sense rule” for a court to be satisfied that the dollar amount awarded in a judgment is not in excess of the dollar amount enumerated by the regulation which permitted the judgment in the first instance.
Decision Date: February 27, 2007

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 (Edgar G. Walker, J.), entered May 2, 2005, deemed an appeal from a judgment entered on September 22, 2005 (CPLR 5501 [c]). The judgment, entered pursuant to the order entered May 2, 2005 which denied plaintiff’s motion for partial summary judgment in the sum of $3,268.58 and granted defendant’s cross motion for summary judgment, dismissed the complaint.

Judgment reversed without costs, order dated May 2, 2005 insofar as it granted defendant’s cross motion for summary judgment vacated, defendant’s cross motion for summary judgment denied and complaint reinstated.

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 of plaintiff’s counsel, an affidavit by 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 attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s corporate officer 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. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as 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, 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., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud [*2]
Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied.

With respect to defendant’s cross motion for summary judgment, however, we are of the opinion that the court erred in granting the cross motion and dismissing the complaint, since, as plaintiff asserted in opposition to the cross motion, defendant did not submit evidence from someone with personal knowledge of the timely mailing of its claim denials (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In the absence of proof of timely mailing, there remains an issue of fact as to whether defendant was precluded from interposing its defense of lack of medical necessity. Accordingly, dismissal was not warranted.

We pass on no other issues.

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., dissents in a separate memorandum.

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

In my opinion, the judgment should be affirmed.

While I am in agreement with the majority that plaintiff did not make out its prima facie entitlement to judgment as a matter of law, and that the court below properly denied its motion for partial summary judgment, I do not agree with its conclusion with respect to defendant’s cross motion. In my opinion, based upon a review of the record,
the papers submitted by defendant in support of its cross motion for summary judgment established its prima facie entitlement to such relief. Inasmuch as plaintiff, in
opposition thereto, failed to proffer sufficient evidence in admissible form to raise a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]), summary judgment in favor of defendant was warranted.
Decision Date: February 27, 2007

[*1]

Supreme Court, Appellate Term, Second Department, June 4, 2007

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant.

{**16 Misc 3d at 21} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, inter alia, on the ground that defendant’s NF-10 denial of claim form, which alleged the lack of medical necessity, failed to assert sufficient facts and a medical rationale based thereon to set forth, with the requisite specificity, a proper ground for the denial. The court denied the motion, finding the denial form’s reference to a negative peer review report sufficient to apprise plaintiff of the basis of its determination that the medical services provided were medically unnecessary. Plaintiff appeals, and we affirm (A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2d Dept 2007]). To the extent that A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (12 Misc 3d 30 [App Term, 2d & 11th Jud Dists 2006]) and related cases are to the contrary, they should no longer be followed (see 11 NYCRR 65-3.8 [b] [4]).

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

[*1]

Supreme Court, Appellate Term, Second Department, February 27, 2007

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Anthony J. Centone, P.C., White Plains, for respondent.

{**15 Misc 3d at 34} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

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 of counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. Inasmuch as 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.

As plaintiff correctly asserted in the court below and on appeal, notwithstanding the fact that the denial of claim forms were timely on their face, defendant failed to establish that any of the forms were timely mailed within the prescribed 30-day period (11 NYCRR 65-3.8 [c]). Defendant’s opposition papers lacked any documentary proof or an affidavit of a representative of defendant which would sufficiently demonstrate either actual mailing of the denials or give rise to a presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Accordingly, defendant was precluded from raising its proffered defense of lack of medical necessity as to the three claims in question (see e.g. Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 139[A], 2006 NY Slip Op 50582[U] [App Term, 2d & 11th Jud Dists 2006]), and plaintiff [*2]was therefore entitled to summary judgment.

In view of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Weston Patterson, J. (dissenting and voting to affirm the order in the following memorandum). I disagree with the majority opinion and would vote to affirm the order on the ground that plaintiff failed to establish its entitlement to judgment as a{**15 Misc 3d at 35} matter of law. In support of its motion, plaintiff attaches a vague, nonspecific affidavit of its corporate officer Charles DeMarco. Nothing in the affidavit identifies what services were rendered, when they were rendered, the amount owed, and the dates the claims were mailed. Instead, the affidavit alleges that the “attached are my corporate business records for billing and are true copies of the no-fault claim.” In the absence of any foundation for the admission of these records, I cannot agree that plaintiff sustained its burden of establishing a prima facie case (see Mega Supply & Billing, Inc. v Progressive Cas. Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50023[U] [App Term, 2d & 11th Jud Dists 2007]).

The fact that defendant raised no issue below or on appeal with respect to plaintiff’s prima facie showing is irrelevant. A movant’s failure to establish a prima facie case mandates denial of a summary judgment motion without regard for the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Having failed to sustain its burden of making a prima facie showing, plaintiff is not entitled to judgment as a matter of law.

Accordingly, I would vote to affirm the order below.

Pesce, P.J., and Belen, J., concur; Weston Patterson, J., dissents in a separate memorandum.

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 (Ellen M. Spodek, J.), entered April 1, 2005. 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.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied the petitioner’s claims for first-party no-fault benefits (see 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).

Pesce, P.J., Golia and Belen, JJ., concur. [*2]
Decision Date: February 26, 2007

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 (Arlene Bluth, J.), entered November 28, 2005. The order granted a motion to dismiss the proceeding for improper service of process.

Order affirmed without costs.

R.J. Professional Acupuncturist, P.C. (R.J.) commenced the instant special proceeding to vacate a master arbitrator’s award, which affirmed the arbitrator’s award denying R.J.’s claim for assigned first-party no-fault benefits in the sum of $1,549.26. The insurer, Allstate Insurance Company (Allstate), moved to dismiss the proceeding, based on R.J.’s failure to serve a notice of petition and petition in accordance with CPLR 402 and 403. R.J. contends that a petition was not required in this case because it was appealing as a remedy after losing in arbitration and, thus, was continuing, and not commencing, an action. The court below granted Allstate’s motion to dismiss for failure to properly serve a notice of petition and petition in the manner provided for in CPLR 403 (c).

R.J. commenced the instant proceeding by serving the notice of petition served on Allstate’s attorney by regular mail. Pursuant to CPLR 403 (c), a notice of petition shall be served in the same manner as a summons in an action (Matter of Star Boxing, Inc. v DaimlerChrysler Motors Corp., 17 AD3d 372 [2005]). In view of the foregoing, the motion to dismiss the proceeding was properly granted on the ground of improper service (see CPLR 403 [c]).

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: February 26, 2007

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 January 24, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

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 by 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 attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, in effect, that said affidavit was
vague, and plaintiff failed to establish a prima facie case. The court below denied plaintiff’s motion for summary judgment based on plaintiff’s failure to make out a prima facie case. The instant appeal by plaintiff ensued. Inasmuch as 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, 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., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). In view of the foregoing, we do not reach the parties’ remaining contentions.

Pesce, P.J., Golia and Belen, JJ., concur. [*2]
Decision Date: February 26, 2007

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 (Milagros A. Matos, J.), entered June 28, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a health care 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 by someone who was either an “employee/shareholder” or an “employee of the company providing billing services for plaintiff,” and various documents annexed thereto. The affidavit stated in conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition to the motion, defendant argued, inter alia, that the affidavit 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. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted in support of plaintiff’s motion was insufficient to establish that the affiant 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, 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., Misc 3d , 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Golia and Belen, JJ., concur. [*2]
Decision Date: February 26, 2007

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 (Arlene Bluth, J.), entered November 10, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below denied the motion on the ground that plaintiff failed to make a prima facie case because 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 to
establish that the documents annexed to plaintiff’s moving papers were admissible as business records. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: February 26, 2007

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 (Peter Paul Sweeney, J.), entered October 13, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

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 by an employee of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s employee stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. The court below denied the motion on the ground that plaintiff’s moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its motion for summary judgment.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s employee, submitted in support of the motion, failed to lay a proper foundation for the documents annexed [*2]to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. 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., Misc 3d , 2007 NY Slip Op [App Term, 2d & 11th Jud Dists, Jan. 12, 2007]; Dan Med., P.C. v New York Cent. Mut. Fire
Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: February 26, 2007