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 5, 2007. The order granted plaintiff’s motion for summary judgment.

Order modified by granting plaintiff’s motion for summary judgment to the extent of awarding it summary judgment on its claims seeking the sums of $184.29, $98.01, $130.68, $32.67, $130.68, $98.01, $60 and $30, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, and submitted two denials, which denied plaintiff’s claims on the grounds of concurrent care and the lack of medical necessity for the services rendered. The court granted plaintiff’s motion for summary judgment, finding that defendant’s opposition papers failed to “include a report showing the subject alleged concurrent care.” The instant appeal by defendant ensued.

While defendant contended that it timely denied plaintiff’s claims seeking to recover the sums of $184.29, $98.01, $130.68, $32.67, $130.68, $98.01 and $60, plaintiff asserted that the denials of said claims were either untimely or not issued. Since defendant’s claims manager did not personally mail the denials for these claims, and did not set forth defendant’s standard office practice or procedure to ensure that denials are properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2007]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant did not [*2]establish that the denials, dated November 2005, were timely mailed. Thus, defendant is precluded from raising most defenses including its proffered defenses of concurrent care and lack
of medical necessity with respect to these claims (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Accordingly, plaintiff was entitled to summary judgment upon said claims.

With respect to defendant’s denial of plaintiff’s claims seeking to recover the sums of $90, $150 and $30, the record indicates that plaintiff, in effect, conceded that the denial of claim form pertaining to said claims was timely. These claims were denied on the ground of concurrent care. However, defendant failed to establish an issue of fact with respect to said defense since it did not submit an affidavit from a person with the relevant training and/or educational background to competently assess whether the claims sought payment for treatment which constituted concurrent care. These claims were also denied based upon an affirmed independent medical examination (IME) report, a copy of which was attached to defendant’s opposing papers. Since the IME report set forth a sufficient factual basis and medical rationale for the conclusion that the services rendered after the IME was conducted, for which plaintiff seeks to recover the sums of $90 and $150, were not medically necessary, plaintiff’s motion for summary judgment should have been denied as to these two claims (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]). However, since plaintiff’s claim seeking the sum of $30 was for services rendered before the IME was conducted, the IME report, which indicated that, as of the date of the IME, there was no medical necessity for further treatment, is insufficient to demonstrate the existence of an issue of fact as to the medical necessity of such services. Consequently, plaintiff was entitled to summary judgment upon the $30 claim.

Accordingly, plaintiff is awarded partial summary judgment on its $184.29, $98.01, $130.68, $32.67, $130.68, $98.01, $60 and $30 claims, 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.

Pesce, P.J., and Weston Patterson, 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.
Decision Date: September 03, 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 (Alice Fisher Rubin, J.), entered March 13, 2007. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order modified by providing that defendant’s cross motion for summary judgment is denied; as so modified, 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 officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s 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 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. Defendant also cross-moved for summary judgment on the ground that the action was premature because plaintiff failed to provide verification which defendant requested. The court denied plaintiff’s motion for summary judgment on the ground that plaintiff did not prove that the claim forms were mailed to defendant and granted defendant’s cross motion, finding that the action was premature. This appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s 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 [*2](see 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.

However, defendant failed to demonstrate that it timely mailed the verification and follow-up verification requests (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant’s cross motion failed to establish that plaintiff’s action was premature due to plaintiff’s failure to respond to timely verification requests (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; cf. Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). Accordingly, defendant’s cross motion for summary judgment should have been denied.

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

Golia, J., concurs in part and dissents in part in a separate memorandum.

Golia, J., concurs in part and dissents in part and votes to affirm the order in the following memorandum:

I concur with the majority’s finding that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, in line with our holding in Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

However, I disagree and dissent from its determination that “defendant failed to demonstrate that it timely mailed the verification and follow-up verification requests . . . .” I find that the record demonstrates that defendant timely mailed the verification and
follow-up verification requests, all in accordance with my dissenting opinions in Uptodate Medical Services, P.C. v Lumbermens Mut. Cas. Co. (20 Misc 3d 135[A], 2008 NY Slip Op 51502[U] [App Term, 2d & 11th Jud Dists 2008]) and Horton Med., P.C. v New York Cent. Mut. Fire Ins. Co. (___ Misc 3d ___, 2008 NY Slip Op [App Term, 2d & 11th Jud Dists 2008]).

Inasmuch as plaintiff has failed to respond to those requests, defendant’s cross motion for summary judgment dismissing the action as premature was properly granted by the motion court (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

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 July 31, 2006. The order denied plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff summary judgment upon its claims seeking to recover the sums of $1,999.12, $532.20, and $1,786.18, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claim; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment upon four claims. Defendant opposed the motion. The court denied plaintiff’s motion, finding that triable issues of fact existed as to medical necessity. The instant appeal by plaintiff ensued.

Plaintiff established its prima facie entitlement to summary judgment by proof that it submitted the claim forms, 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]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The affidavit of defendant’s senior operations staff analyst was sufficient to establish that the NF-10 denial of claim forms pertaining to plaintiff’s claims seeking the sums of $1,999.12 and $746.01 were timely mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud [*2]Dists 2007]).

As to the claim seeking $1,999.12, defendant did not rebut plaintiff’s prima facie showing because the affirmed peer review report upon which this claim was denied, and which is annexed to defendant’s opposing papers, does not set forth a factual basis and medical rationale sufficient to establish the defense of lack of medical necessity, inasmuch as the reviewer asserted that she had insufficient documentation and information (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]). Since defendant did not demonstrate that it sought to obtain such information by means of a verification request, defendant did not establish a triable issue of fact as to this claim (see id.; A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists 2005]). Consequently, plaintiff is entitled to summary judgment on its $1,999.12 claim.

With respect to the claim seeking $746.01, defendant rebutted plaintiff’s prima facie showing because the affirmed peer review report upon which this claim was denied, and which is annexed to defendant’s opposing papers, set forth a sufficient factual basis and medical rationale so as to raise a triable issue of fact regarding medical necessity (see A.B. Med. Servs. PLLC. v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [2007], supra). Contrary to plaintiff’s contention, the fact that the reviewer stated in the report that the “documentation did not reflect that this claimant had failed office-based physical therapy,” does not require the conclusion that the doctor considered the information insufficient to permit a medical necessity determination. Consequently, plaintiff is not entitled to summary judgment on its $746.01 claim.

With respect to the claims seeking the sums of $532.20 and $1,768.18, the affidavit of defendant’s senior operations staff analyst is insufficient to show that defendant timely mailed its denials for said claims since the affiant does not address the mailing of these denials in his affidavit. Consequently, defendant is precluded from interposing its proffered defense of lack of medical necessity with respect to these two claims (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Accordingly, plaintiff is entitled to summary judgment on said claims.

In view of the foregoing, plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff summary judgment on its claims seeking to recover the sums of $1,999.12, $532.20, and $1,786.18, 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 claim.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: September 03, 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 June 19, 2007. The order denied plaintiffs’ motion for summary judgment.

Order affirmed without costs.

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

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

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

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

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

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

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

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

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

The affidavit submitted by defendant’s claims representative was sufficient to give rise to a presumption that the denial of claim form at issue was mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since defendant’s timely denial of claim form stated that the claim was denied pursuant to a peer review which found that the supplies furnished by plaintiff to its assignor were not medically necessary, it is sufficient to avoid preclusion of the defense of [*2]lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). In opposition to plaintiff’s motion for summary judgment, defendant annexed an affidavit by the chiropractor who executed the peer review report which set forth a factual basis and medical rationale for his opinion that the medical supplies at issue were medically unnecessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

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

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

Respondent,

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

Appellant.

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

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

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

Judgment affirmed without costs.

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

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

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

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered January 24, 2007. The order granted defendant’s motion to sever multiple causes of action.

Order affirmed without costs.

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

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

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

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

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

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

On appeal, defendant asserts that the affidavit by plaintiff’s officer, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s officer was insufficient to demonstrate that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med. P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied. [*2]

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

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

Appeal from order dismissed.

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

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

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

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

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

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

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

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

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

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

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

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

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