SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Andrea Phoenix, J.), entered December 10, 2007. The order denied plaintiffs’ motion for partial summary judgment.

Order modified by providing that plaintiffs’ motion for partial summary judgment is granted to the extent of awarding plaintiff A.B. Medical Services, PLLC summary judgment on its claims seeking to recover the sums of $230.10, $71.40, $361.46, $361.46, $1,546.20, $501.76, $71.06, $1,573.24 and $569.36; plaintiff LVOV Acupuncture, P.C. summary judgment on its claims seeking to recover the sums of $650.50, $248.28 and $435.98; and plaintiff RW Health Plus Chiropractic, P.C. summary judgment on its claims seeking to recover the sums of $290.64, $269.60 and $134.80, and the matter is remanded to the court below for the calculation of statutory interest and attorney’s fees thereon, and for further proceedings on all remaining claims.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for partial summary judgment on various claims, and defendant opposed the motion. The court below denied plaintiffs’ motion. This appeal by plaintiffs ensued. [*2]

Since defendant did not argue in the court below that plaintiffs’ medical biller and billing manager failed to establish that he possessed personal knowledge of plaintiffs’ practices and procedures so as to lay a foundation for the admission, as business records, of plaintiffs’ documents, we do not pass on the propriety of the determination of the court below with respect thereto (see Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).

The record shows that defendant failed to pay or deny the claims by A.B. Medical Services, PLLC (A.B. Med.) seeking the sums of $230.10 and $71.40 within the 30-day prescribed period and that it also failed to establish that such period was extended by its issuance of a timely request for verification. Consequently, defendant was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), with exceptions not relevant to these claims. As a result, defendant failed to establish the existence of a triable issue of fact with respect to said claims, and A.B. Med. was entitled to summary judgment thereon.

An insurer’s 30-day period in which to either pay or deny a claim may be extended where the insurer submits, within 15 business days of its receipt of the NF-3 claim form, a request for additional verification (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 100 [2005]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). “A claim need not be paid or denied until all demanded verification is provided” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). Since the affidavit of defendant’s no-fault litigation supervisor lacks specificity to support the assertion that defendant did not receive the verification it requested, it was insufficient to establish that the verification was still outstanding and, thus, that defendant’s time to pay or deny the claims was tolled (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729 [2007]; Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981 [2007]; cf. Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481 [2008]). As a result, the claims by plaintiff A.B. Med. in the sums of $361.46, $361.46, $1,546.20, $501.76, $71.06, $1,573.24 and $569.36, and the claims by plaintiff RW Health Plus Chiropractic, P.C. (RW Health) in the sums of $290.64, $269.60 and $134.80 are overdue (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]), and A.B. Med. and RW Health are entitled to summary judgment upon said claims (see Westchester Med. Ctr., 45 AD3d 676).

Plaintiffs’ contention that defendant’s submissions from the acupuncturist who performed the peer reviews were insufficient to raise a triable issue of fact with respect to the claims submitted by LVOV Acupuncture, P.C. (LVOV) is correct. Since the acupuncturist’s peer review reports were unsworn, the reports were of no probative value (see Dowling v Mosey, 32 AD3d 1190 [2006]; Macri v St. Agnes Cemetery, 44 Misc 2d 702 [1965]). Accordingly, defendant’s submissions failed to raise a triable issue of fact as to medical necessity with respect to LVOV’s claims in the sums of
$650.50, $248.28 and $435.98, and LVOV is entitled to summary judgment upon said claims.

However, contrary to plaintiffs’ contention, defendant, through the submission of the [*3]affidavit of its no-fault litigation supervisor and affirmed peer review reports established that the claims by A.B. Med. seeking the sums of $604.24 and $644.50, and by RW Health seeking the sums of $303.30 and $202.20 were properly and timely denied based upon a lack of medical necessity (see A.B. Med. Servs. PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists 2005]). As a result, A.B. Med. and RW Health are not entitled to summary judgment upon said claims.

Although plaintiffs argue that defendant’s denial of a claim by A.B. Med. seeking the sum of $182.37 was untimely, plaintiffs’ exhibits included a copy of said denial of claim form, which is timely on its face and which denied the claim based upon an affirmed peer review report which was also attached to plaintiff’s moving papers. Given the affidavit of defendant’s no-fault litigation supervisor setting forth defendant’s standard office practice and procedure for the generation and mailing of defendant’s denial of claim forms (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), plaintiff is not entitled to summary judgment upon said claim.

In view of the foregoing, plaintiffs’ motion for summary judgment is granted to the extent of awarding A.B. Med. summary judgment on its claims seeking to recover the sums of $230.10, $71.40, $361.46, $361.46, $1,546.20, $501.76, $71.06, $1,573.24 and $569.36, LVOV summary judgment on its claims seeking to recover the sums of $650.50, $248.28 and $435.98, and RW Health summary judgment on its claims seeking to recover the sums of $290.64, $269.60 and $134.80, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.

Rudolph, P.J., McCabe and Molia, JJ., concur.
Decision Date: November 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 (Joseph J. Esposito, J.), entered May 23, 2007. The order, inter alia, granted the motion by defendant Shauky M. Musa-Obregon to vacate a default judgment entered April 7, 2005 insofar as it was against him.

Order reversed without costs, motion by defendant Shauky M. Musa-Obregon to vacate the default judgment insofar as it was against him denied and default judgment against him reinstated.

Plaintiff commenced this action to recover payments of uninsured and basic no-fault benefits on behalf of its subrogor, who allegedly sustained serious injuries in a motor vehicle accident on October 21, 2002. After plaintiff was awarded a default judgment on April 7, 2005, defendant Shauky M. Musa-Obregon (defendant) moved to vacate so much of the judgment as was against him on the ground that he was not served. The parties entered into a so-ordered stipulation which provided that the default judgment was vacated and defendant’s affidavit in support of his motion would constitute his answer to the complaint. After another default by defendant, an inquest was held and the default judgment was reinstated against him. Defendant moved to vacate the default judgment on the ground of excusable default, submitting in support of his motion an affirmation from his attorney and various exhibits annexed thereto. Plaintiff [*2]opposed the motion, arguing, inter alia, that defendant failed to explain why he did not appear for trial. The court below granted defendant’s motion. Plaintiff’s appeal ensued.

In order to vacate a default judgment under CPLR 5015 (a), the defaulting party must demonstrate a reasonable excuse for his default as well as a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]; Montague v Rivera, 50 AD3d 656 [2008]). In the present case, since defendant’s attorney failed to allege personal knowledge of the facts asserted, his affirmation is of no probative value (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; V.S. Med. Servs., P.C. v New York Cent. Mut. Ins. Co., 20 Misc 3d 134[A], 2008 NY Slip Op 51473[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant failed to establish a reasonable excuse for his default and his motion to vacate the default judgment should have been denied.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: November 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 (Diane A. Lebedeff, J.), entered August 28, 2007, deemed from a judgment of said court entered September 26, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the August 28, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $740.25.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, asserting, among other things, that defendant had failed to timely deny the claim. The court granted plaintiff’s motion, holding that the statutory time period in which defendant had to pay or deny the claim was not tolled because defendant’s follow-up verification request letter was premature. The instant appeal by defendant ensued.

Since defendant raises no issue on appeal with respect to plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass on the propriety of the determination of the court below with respect thereto.

In opposition to plaintiff’s motion, defendant argued that the statutory time period in which it had to pay or deny the claim was tolled due to the assignor’s delay in appearing for an examination under oath (EUO). However, contrary to defendant’s contention, the September 19, 2006 letter did not constitute a proper request for verification since it neither demanded nor required a response (see New York & Presbyt. Hosp. v Eagle Ins. Co., 17 AD3d 646 [2005]; Englinton Med. P.C. v MVAIC, 14 Misc 3d 135[A], 2007 NY Slip Op 50164[U] [App Term, 2d [*2]& 11th Jud Dists 2007]). Consequently, the 30-day claim determination period (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]) was not tolled, and defendant’s denial of claim form was untimely. As a result, defendant was precluded from raising most defenses, including its proffered defense of lack of medical necessity (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Accordingly, the judgment is affirmed.

In view of the foregoing, we pass on no other issue.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: November 05, 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 (Dolores L. Waltrous, J.), entered May 3, 2007. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for a protective order and granted defendant’s cross motion to strike the complaint or, in the alternative, to compel discovery, to the extent of directing plaintiff to comply with all outstanding discovery demands and to appear for an examination before trial.

Order, insofar as appealed from, modified by providing that defendant’s cross motion is granted only to the extent of compelling plaintiff to produce the documents requested in the first, eighth through fourteenth, sixteenth and eighteenth numbered paragraphs of defendant’s demand for discovery and inspection within 60 days of the date of the order entered hereon and that, within 30 days after such production, plaintiff shall appear for an examination before trial; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served plaintiff with combined discovery demands, including a demand for discovery and inspection and a notice of examination before trial (EBT). Subsequently, plaintiff moved, inter alia, for a protective order, and defendant cross-moved to strike the complaint or, in the alternative, to compel plaintiff to appear for an EBT and to produce the documents requested in its demand for discovery and inspection. The court below denied plaintiff’s motion for a [*2]protective order and granted defendant’s cross motion to the extent of directing plaintiff to comply with all outstanding discovery demands and to appear for an EBT. This appeal by plaintiff ensued.

Since plaintiff failed to challenge the propriety of defendant’s demand for discovery and inspection within the time prescribed by CPLR 3122, it is obligated to produce the information sought therein except as to matters which are privileged or palpably improper (see Fausto v County of Nassau, 17 AD3d 520 [2005]; Garcia v Jomber Realty, 264 AD2d 809 [1999]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]). In the absence of any claim of privilege, the only issue for this court’s review is whether defendant’s requests for documents in said demand were palpably improper (see Saratoga Harness Racing v Roemer, 274 AD2d 887 [2000]).

Where a discovery demand concerns matters relating to a defense which a defendant is precluded from raising, it is palpably improper, notwithstanding the fact that the plaintiff did not specifically object thereto (see A.B. Med. Servs. PLLC, 11 Misc 3d 71). As defendant did not establish that it timely denied plaintiff’s claims, to the extent defendant seeks discovery in support of its defense of lack of medical necessity, discovery of such precluded matter is palpably improper (see id.).

In State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), the Court of Appeals held that an insurer may withhold payment to a medical services provider if the provider is fraudulently incorporated, without regard to whether the medical services were unnecessary or improper. In the instant case, the record reveals that defendant set forth detailed and specific reasons for believing that plaintiff may be ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation, a defense which is not precluded (see Midborough Acupuncture, P.C. v State Farm Ins. Co., Misc 3d , 2008 NY Slip Op 28291 [App Term, 2d & 11th Jud Dists 2008]). To the extent that defendant seeks production of, inter alia, plaintiff’s certificate of incorporation, management documents, and medical licenses of plaintiff’s shareholders, such discovery is material and necessary to defendant’s contention that plaintiff is ineligible for reimbursement of no-fault benefits (see CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., AD3d [2d Dept, Sept. 9, 2008]; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]). Accordingly, defendant is entitled to production of the documents sought in paragraphs 1, 8 through 14, 16 and 18 of defendant’s demand for discovery and inspection.

With respect to that portion of the order which directed plaintiff to appear for an EBT, plaintiff has failed to assert any viable reason for its contention that said EBT should not be held. Since defendant’s defense to this action is based upon plaintiff’s alleged ineligibility to recover reimbursement of assigned no-fault benefits (see Mallela, 4 NY3d 313), it is entitled to such EBT (see CPLR 3101 [a]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: November 05, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated March 1, 2007. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross 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 and defendant cross-moved for summary judgment. The court below granted plaintiff’s motion and denied defendant’s cross motion. The instant appeal by defendant ensued.

On appeal, defendant contends that the affidavit by the biller employed by a third party, submitted in support of plaintiff’s motion, failed to lay a proper foundation for the documents annexed to the moving papers and that, as a result, plaintiff failed to establish a prima facie case (see Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th 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]). We decline to consider this argument since it is raised for the first time on appeal and is therefore unpreserved (cf. 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]). Accordingly, we do not pass upon the propriety of the determination of [*2]the court below with respect to plaintiff’s establishment of its prima facie case.

In opposition to plaintiff’s motion and in support of its cross motion seeking summary judgment dismissing the complaint as premature on the ground that plaintiff had failed to respond to its verification requests (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]), defendant argued that notwithstanding the fact that it had received plaintiff’s hospital facility form (NYS Form NF-5), verification was still outstanding because it had received neither an application for motor vehicle no-fault benefits nor a completed assignment of benefits form. Contrary to defendant’s contention, an insurer must accept a completed hospital facility form submitted by a provider of health services in lieu of a prescribed application for motor vehicle no-fault benefits (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [g]; see also Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536 [2005]; Nyack Hosp. v Allstate Ins. Co., 13 Misc 3d 139[A], 2006 NY Slip Op 52233[U] [App Term, 9th & 10th Jud Dists 2006]). Moreover, defendant admitted having received the hospital facility form (which included an assignment) on October 6, 2005, and did not request verification of the assignment until December 23, 2005. Accordingly, defendant failed to establish that it timely requested verification with respect to the assignment (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007], supra), and consequently failed to demonstrate its entitlement to verification of the assignment (id.).

Since defendant failed to raise a triable issue of fact in opposition to plaintiff’s motion for summary judgment and failed to set forth a prima facie case with respect to its cross motion for summary judgment, the court below properly granted plaintiff’s motion and denied defendant’s cross motion. The order is therefore affirmed.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 05, 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 (Kathy J. King, J.), entered May 18, 2007. 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. In opposition, defendant argued that there was an issue of fact as to medical necessity. The court below denied plaintiff’s motion on the grounds that it failed to prove its prima facie entitlement to summary judgment inasmuch as plaintiff failed to prove that the claim forms were submitted to defendant and because the supporting affidavit did not establish that it was based upon the affiant’s personal knowledge of plaintiff’s standard office practices and procedures. The instant appeal by plaintiff ensued.

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 the instant case, 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 claims 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 [*2]Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). In addition, a review of the record indicates that plaintiff’s affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; 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 record establishes plaintiff’s prima facie entitlement to summary judgment.

Contrary to plaintiff’s contention, defendant, through the submission of the affidavit of its claims representative and the affirmed peer review, established that plaintiff’s claims were properly and timely denied based upon a lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; 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]; 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]). Accordingly, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 31, 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 May 3, 2007, deemed from a judgment of the same court entered October 29, 2007 (see CPLR 5520 [c]). The judgment, entered pursuant to the May 3, 2007 order granting defendant’s motion to dismiss, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover first-party no-fault benefits for medical supplies furnished to its assignor, defendant moved for an order, pursuant to CPLR 3211 (a) (5) and (7), dismissing the complaint because a stipulation of discontinuance “with prejudice” had been executed by the parties in a prior action, brought under a different index number, involving the same assignor and the identical no-fault claims and claim denial forms. Plaintiff opposed, contending that it had never had an opportunity to fully litigate the merits of the discontinued action. The court below granted the motion to dismiss, and this appeal by plaintiff ensued. A judgment was subsequently entered dismissing the complaint.

A stipulation of discontinuance which specifies that it is “with prejudice” raises a presumption that the stipulation is to be given res judicata effect in future litigation on the same cause of action (see North Shore-Long Is. Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 440 [2006]; Singleton Mgt. v Compere, 243 AD2d 213, 216 [1998]). Plaintiff herein has not denied that the cause of action in the discontinued case is identical to the cause of [*2]action in the instant case. Nor did the stipulation executed in the discontinued action contain any explicit exception permitting the instant action to continue (see Biggs v O’Neill, 41 AD3d 1067 [2007]). There is nothing in the record before us to reflect that the parties, at the time of execution of the stipulation, intended that the stipulation not have res judicata effect.

We note that plaintiff has raised arguments on the appeal based upon factual allegations which were not presented to the court below. This court will not consider
matters which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]). For the foregoing reasons, defendant’s motion to dismiss the instant complaint was properly granted and, accordingly, the judgment is affirmed.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 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 (Arlene Bluth, J.), dated August 1, 2007. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking to vacate a judgment entered in favor plaintiffs and the underlying order which, inter alia, granted plaintiffs’ prior motion for summary judgment and, upon such vacatur, to dismiss the complaint.

Order, insofar as appealed from, affirmed without costs.

In or about April 2004, plaintiffs commenced this action to recover assigned first-party no-fault benefits. Plaintiffs subsequently moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. In July 2005, the court below granted plaintiffs’ motion and denied defendant’s cross motion. In September 2005, a judgment was entered in favor of plaintiffs. Prior to the enforcement of the judgment, plaintiffs’ attorney was suspended from practicing law in the State of New York (see Matter of Weinberg, 25 AD3d 157 [2005]). In January 2006, defendant moved for a stay of any attempt to [*2]enforce the judgment, pending the substitution of new counsel. Plaintiffs opposed the motion. In August 2006, the court below granted defendant’s motion and stayed the action until each plaintiff served and filed a proper consent to change attorney. In February 2007, plaintiffs moved to lift the stay. Defendant opposed the motion and cross-moved to vacate the award of summary judgment and dismiss the complaint. By order dated August 1, 2007, the court below granted plaintiffs’ motion and denied defendant’s cross motion. The instant appeal by defendant ensued.

In its cross motion, defendant argued that the July 2005 order granting summary judgment to plaintiffs and the September 2005 judgment entered thereon, should be vacated because there was never consent to Mr. Weinberg’s representation given by plaintiffs from the inception of the instant action. In the alternative, defendant sought a tolling of the accrual of interest. On appeal, defendant contends that the judgment and the order awarding judgment to plaintiffs should be vacated because defendant has a meritorious defense and reasonable excuse or, in the alternative, because plaintiffs failed to establish their prima facie entitlement to summary judgment. Indeed, defendant cites CPLR 5015 in support of its position, which refers to excusable defaults. However, the case at bar does not involve a default judgment, since the September 2005 judgment was entered after defendant submitted opposition papers to plaintiffs’ motion for summary judgment, and cross-moved for summary judgment. We note that defendant has presented no other grounds under CPLR 5015 to warrant the vacatur of the judgment and order.

Moreover, defendant’s contention regarding plaintiffs’ prima facie entitlement to summary judgment is not properly before this court inasmuch as defendant is appealing from the August 2007 order entered after the September 2005 judgment. Since the order merely granted plaintiffs’ motion to lift the stay and denied defendant’s cross motion seeking to either vacate the judgment based upon plaintiffs’ alleged failure to demonstrate that they retained plaintiffs’ counsel or to toll the time during which interest accrued on the judgment, the merits of the summary judgment motions decided by the July 2005 order, upon which the judgment was entered, are not subject to review as part of this appeal. Defendant’s remaining contentions have no merit. Furthermore, we note that Mr. Weinberg’s suspension from the practice of law occurred after judgment was entered herein and he has since been reinstated to the bar, which action prompted plaintiffs’ motion to lift the stay. Accordingly, the order, insofar as appealed from, is affirmed.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 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 September 28, 2007. The order granted a petition to vacate a master arbitrator’s award.

Order reversed, without costs, petition to vacate the master arbitrator’s award denied, and matter remanded to the court below for the entry of a judgment confirming the master arbitrator’s award.

Valentin Avanessov, Physician, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld the denial of its claim for assigned first-party no-fault benefits. The court granted the petition and this appeal ensued.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see SP Medical, P.C. v Country-Wide Ins. Co., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]). Petitioner submitted a document that was denominated an “Affirmation in Support.” The only document submitted in support of the petition was one which was not affirmed “to be true under the penalties of perjury” (CPLR 2106). Indeed, the attorney who signed the document merely indicates that he “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]). Accordingly, the document is insufficient as an affirmation (see SP Medical, P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]).

In view of the foregoing, the petition to vacate the master arbitrator’s award should have [*2]been denied. Furthermore, upon denying the petition, the court is 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]). While we do not reach the remaining contentions, 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: October 27, 2008

—[*1] Amos Weinberg, Great Neck, N.Y., for appellants.

John P. Humphreys, Melville, N.Y. (David R. Holland and Dominic P. Zafonte of counsel), for respondents.

In an action to recover assigned first-party no-fault benefits under an insurance contract, the plaintiffs appeal, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated June 4, 2007, which affirmed an order of the Civil Court of the City of New York, Kings County (Nadelson, J.), entered April 5, 2005, denying their motion for partial summary judgment.

Ordered that the order dated June 4, 2007 is affirmed, with costs.

The plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law. The plaintiffs’ medical service providers failed to demonstrate the admissibility of their billing records under the business records exception to the hearsay rule (see CPLR 4518 [a]; Matter of Leon RR., 48 NY2d 117, 122-123 [1979]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-180 [2007]; Kane v Triborough Bridge & Tunnel Auth., 8 AD3d 239, 241 [2004]; Rosenthal v Allstate Ins. Co., 248 AD2d 455, 456-457 [1998]). Thus, the plaintiffs’ motion was properly denied, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

To the extent that the plaintiffs raise any issue with respect to the defendant’s cross motion for summary judgment dismissing the complaint, that issue is not properly before us, as the cross [*2]motion remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543 [1979]). Prudenti, P.J., Santucci, McCarthy and Chambers, JJ., concur.