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 September 8, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, asserting that it timely denied plaintiff’s claim on the ground that the services provided were not medically necessary based on a peer review report. The court below denied plaintiff’s motion for summary judgment, and the instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the affidavit submitted by defendant’s claims representative sufficiently established that the denial of claim form at issue was timely mailed pursuant to defendant’s standard office practice and procedure (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; 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]; see also New York & Presbyterian Hospital v AIU Ins. Co., 20 AD3d 515 [2005]; Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2004]). Defendant’s papers submitted in opposition to plaintiff’s motion for summary judgment, which included a peer review report, were sufficient to demonstrate the existence of an issue of fact with respect to the defense of lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007]). Accordingly, the order denying plaintiff’s motion for summary judgment is affirmed, [*2]albeit on other grounds.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 25, 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 25, 2006. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to vacate the default judgment entered against it.

Order, insofar as appealed from, reversed without costs and defendant’s motion to vacate the default judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant failed to submit opposition. The court granted plaintiff’s motion, and plaintiff entered judgment pursuant thereto. Defendant moved to vacate the judgment, arguing that it was improperly entered
as plaintiff failed to comply with CPLR 3215 (f). The court below granted defendant’s motion. This appeal by plaintiff ensued.

Inasmuch as the judgment was entered pursuant to an order that granted plaintiff’s motion for summary judgment upon defendant’s failure to oppose same, CPLR 3215 is inapplicable. To the extent defendant’s motion sought vacatur pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate both a reasonable excuse for its default and a meritorious defense to the action (see Nurse v Figeroux & Assoc., 47 AD3d 778 [2008]). The record reveals that defendant failed to demonstrate that it has a meritorious defense to plaintiff’s action, since defendant did not show that its proffered defenses were set forth in timely denial of claim forms such that defendant is not precluded from interposing such defenses (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]) or that defendant possessed a defense which was not [*2]subject to preclusion (see e.g. Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). In light of the foregoing, defendant’s motion to vacate the judgment should have been denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 25, 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 October 27, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant, the court below denied plaintiff’s motion for summary judgment on the ground that there was an issue of fact as to medical necessity. This appeal by plaintiff ensued.

Contrary to defendant’s contention, plaintiff established 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]). The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The peer review reports submitted by defendant in support of its defense that the services rendered were not medically necessary are illegible. Thus, defendant failed to demonstrate the existence of a triable issue of fact as to medical necessity (see generally West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment should have been granted.

Pesce, P.J., Weston Patterson and Rios, JJ., concur. [*2]
Decision Date: April 24, 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 14, 2006, deemed from a judgment entered May 12, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 14, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,458.29.

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

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment, and a judgment was subsequently entered pursuant thereto.

On appeal, defendant contends that, in an action brought by defendant herein against health care providers including plaintiff herein, Justice Kenneth Davis of the Nassau County Supreme Court enjoined, inter alia, plaintiff herein, from commencing suit against defendant to recover no-fault benefits during the pendency of the action. Accordingly, defendant argues that the summary judgment motion herein was improperly made. Upon a review of the orders issued by Justice Davis appended to opposition papers below, we agree that the injunction barred the motion.

Accordingly, the judgment is reversed, the order granting summary judgment is vacated and plaintiff’s motion for summary judgment is denied without prejudice.

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered October 19, 2006. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. The instant appeal by defendant ensued in which the sole issue raised involves the granting of plaintiff’s motion for summary judgment.

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 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 & [*2]11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 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, Richmond County (Johnny Lee Baynes, J.), entered December 21, 2006, deemed from a judgment of the same court entered January 2, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the December 21, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,375.18 plus statutory interest and attorney’s fees.

Judgment reversed without costs, order entered December 21, 2006 granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

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

On appeal, defendant contends, inter alia, that the affidavit by an employee of plaintiff’s former attorney, 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 the 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 [*2]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.

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]).

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 14, 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 (Richard Velasquez, J.), entered May 1, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order affirmed with $10 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 on the ground that plaintiff was seeking to recover for services performed by an independent contractor. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. This appeal by plaintiff ensued.

Where 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 medical services rendered within the meaning of Insurance Department Regulations (11 NYCRR) § 65-3.11 (a) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer (see Health & Endurance Med. P.C. v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 134[A], 2006 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists 2006]; Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept 2006]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [App Term, 2d & 11th Jud Dists 2005]).

In the case at bar, the claim forms submitted by plaintiff in support of its motion for summary judgment state that the treating professional was an independent contractor and, in opposition to defendant’s cross motion, plaintiff concedes that the services were rendered by an [*2]independent contractor. Contrary to plaintiff’s contention, said defense is nonwaivable and not subject to the preclusion rule (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003]; M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51286[U] [App Term, 2d & 11th Jud Dists 2006]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). As a result, the court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 14, 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 July 18, 2006, deemed from a judgment entered August 22, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 18, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,476.52.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affirmation by plaintiff’s billing manager, and various documents annexed thereto. The affirmation executed by plaintiff’s billing manager 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 affirmation by plaintiff’s billing manager failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The court granted plaintiff’s motion for summary judgment and 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 moving papers. We agree. Inasmuch as the affirmation submitted by plaintiff’s billing manager was insufficient to establish that she possessed personal knowledge of plaintiff’s office practices and procedures so as to lay a foundation for the admission, as business records, of the documents [*2]annexed to plaintiff’s moving papers, 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]). The fact that copies of documents were stored in compliance with a document retention policy is not sufficient to establish that the documents were business records in the absence of a showing as to how and when the documents were generated (see CPLR 4518). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

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

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 8, 2008

—[*1] Karen C. Dodson (Carol R. Finocchio, New York, N.Y. [Lisa M. Comeau] of counsel), for appellant.

Alden Banniettis, Brooklyn, N.Y. (Jeff Henle of counsel), for respondent.

In an action to recover assigned first-party no-fault benefits under an insurance contract, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated December 15, 2006 [14 Misc 2d 128(A), 2006 NY Slip Op 52502(U)], which reversed so much of an order of the Civil Court of the City of New York, Kings County (Sweeney, J.), dated September 14, 2005, as denied the plaintiff’s motion for summary judgment on the complaint, and thereupon granted the plaintiff’s motion.

Ordered that the order is affirmed, with costs.

The plaintiff established, prima facie, its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Contrary to the defendant’s contention, the Appellate Term properly determined that the peer review reports submitted in opposition to the plaintiff’s motion for summary judgment on the complaint were inadmissible since they contained computerized, affixed, or stamped facsimiles of the physician’s signature. These reports failed to comply with CPLR 2106, since they were not subscribed and affirmed, but merely contained facsimiles of the physician’s signature without any indication as to who placed them on the reports, nor are there any indicia that the facsimiles were properly authorized (see Dowling v Mosey, 32 AD3d 1190, 1191 [2006]; Security Pac. Natl. Trust Co. v Cuevas, 176 Misc 2d 846 [1998]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630 [1971]; Macri v St. Agnes Cemetery, 44 Misc 2d 702 [1965]). Thus, the [*2]reports did not constitute competent evidence sufficient to defeat the plaintiff’s motion (see generally Burgos v Vargas, 33 AD3d 579 [2006]; Bourgeois v North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525 [2002]; Doumanis v Conzo, 265 AD2d 296 [1999]; MZ Dental, P.C. v Progressive Northeastern Ins. Co., 6 Misc 3d 649 [2004]). Accordingly, the Appellate Term properly granted the plaintiff’s motion for summary judgment on the complaint based on the defendant’s failure to raise a triable issue of fact in opposition to the plaintiff’s prima facie showing on the motion. Lifson, J.P., Florio, Eng and Chambers, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered June 22, 2006. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of res judicata. Defendant argued that plaintiff had previously commenced an identical action, which was dismissed pursuant to CPLR 3126 (3) for plaintiff’s failure to comply with a so-ordered discovery stipulation. Plaintiff cross-moved for summary judgment. The court below granted defendant’s motion and denied plaintiff’s cross motion. The instant appeal by plaintiff ensued.

Although the court’s order dismissing the prior action did not specifically state that the dismissal of the action was with prejudice or on the merits, since the so-ordered discovery stipulation provided for preclusion, the dismissal was with prejudice and, as a result, plaintiff was barred from commencing a second action (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614 [1985]; Lipin v Bender, 216 AD2d 131 [1995]). Accordingly, the court below properly granted defendant’s motion for summary judgment dismissing the complaint based on [*2]the doctrine of res judicata.
Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 3, 2008