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 Esposito, J.), entered May 8, 2006. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

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

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

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 21, 2006, deemed from a judgment entered December 27, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 21, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,854.30.

Judgment reversed without costs, so much of the order entered September 21, 2006 as granted 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 sole issues raised by defendant are whether it proffered sufficient evidence in support of its cross motion for summary judgment to entitle it to dismissal of plaintiff’s complaint due to the fact that the injuries sustained by plaintiff’s assignor did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) or, in the alternative, whether it proffered sufficient evidence in opposition to plaintiff’s motion for summary judgment to defeat same. Upon a review of the record, we find that while defendant demonstrated that it possessed a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199) so as to defeat plaintiff’s motion, it failed to submit sufficient evidence in admissible form to establish, as a matter of law, “that the alleged injur[ies] do[] not arise out of an insured incident” (id.) so as to warrant dismissal of the complaint. Consequently, neither plaintiff nor defendant is entitled to summary judgment upon their respective motion and cross motion seeking such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 7, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered November 16, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion, asserting that the injuries allegedly sustained by plaintiff’s assignor were not causally related to the accident. The court denied plaintiff’s motion for summary judgment holding that
while plaintiff proved its prima facie entitlement to summary judgment, defendant raised a triable issue of fact. This 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 (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The burden, therefore, shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion, defendant asserted the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The Accident Reconstruction Analysis report, accompanied by the sworn affidavit of the consultant who prepared said report, was sufficient to demonstrate that the defense was based on a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. [*2]Hosp., 90 NY2d at 199; Mount Sinai Hosp., 263 AD2d at 18-19; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists 2005]; cf. Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 97 [App Term, 1st Dept 2007]).

Plaintiff’s argument, that the consultant’s sworn affidavit was inadmissible, because it did not comply with CPLR 2309 (c), is raised for the first time on appeal, and therefore waived (see Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), the lower court properly denied plaintiff’s motion for summary judgment.

In light of the foregoing, we do not reach the parties’ remaining contentions.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 5, 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 (Cynthia Kern, J.), dated July 14, 2006, deemed from a judgment entered August 16, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 14, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,133.14.

Judgment affirmed without costs.

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

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 determination of the court below with respect thereto. In opposition to plaintiff’s motion for summary judgment, defendant submitted, inter alia, an accident analysis report and an affidavit of the technical consultant who prepared the report in an attempt to demonstrate that there was an issue of fact as to whether the injuries allegedly sustained by plaintiff’s assignor arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). The affidavit proffered by defendant was executed in Maryland, and did not comply with CPLR 2309 (c), in that it was not accompanied by a certificate of conformity. Since this defect was duly objected to by plaintiff in the court below, defendant failed to introduce competent evidence in admissible form establishing that it possessed a founded belief that the alleged injuries did not arise out of an insured incident (see Dan Med., P.C. v New York Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51981[U] [App Term, 2d & 11th Jud Dists 2007]; see also Jenkins v Diamond, 308 AD2d 510 [2003], citing Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]; cf. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & [*2]11th Jud Dists 2006]). Accordingly, plaintiff’s motion
for summary judgment was properly granted, as defendant failed to raise a triable issue of fact.

Defendant’s constitutional challenge to CPLR 2309 (c) is unpreserved for appellate review since this argument was not made in the court below (see Matter of Larry B., 39 AD3d 399 [2007]; Matter of Coleman v Thomas, 295 AD2d 508 [2002]; Catholic Family Ctr. v Doe, 147 AD2d 977 [1989]; Emmer v Emmer, 69 AD2d 850 [1979]). Moreover, said challenge is not reviewable as defendant failed to give the requisite statutory notice to the Attorney General (see Executive Law § 71; CPLR 1012; Estate of Marone v Chaves, 306 AD2d 372 [2003]; Matter of Lee P.S. v Lisa L., 301
AD2d 606 [2003]; Robert Fiance Hair Design Inst. v Concourse Props. Co., 130 AD2d 564 [1987]).

In light of the foregoing, the judgment is affirmed.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 29, 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, Third District (Randy Sue Marber, J.), dated August 30, 2005. The order, insofar as appealed from, denied plaintiffs’ motion for summary judgment.

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

In this action by two providers to recover assigned first-party no-fault benefits, the sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiffs’ assignor allegedly sustained, arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that defendant failed to proffer sufficient evidence in admissible form to demonstrate that it possessed a “founded belief that the alleged injur[ies] do not arise out of an insured incident” (id. at 199; Comprehensive Mental v Allstate Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50017[U] [App Term, 9th & 10th Jud Dists 2007]; A.B. Med. Servs. PLLC v State Farm Auto Ins. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2006]; Ocean Diagnostic Imaging P.C. v Travelers Indem. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50644[U] [App Term, 2d & 11th Jud Dists 2005]).

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

Rudolph, P.J., McCabe and Scheinkman, JJ., concur. [*2]
Decision Date: February 27, 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 (Jack M. Battaglia, J.), entered May 22, 2006, deemed from a judgment entered June 29, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 22, 2006 order granting plaintiff’s motion for summary judgment to the extent of awarding plaintiff partial summary judgment and denying, in effect as academic, defendant’s cross motion to compel depositions, awarded plaintiff the principal sum of $3,000.75.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit from a corporate officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents annexed to the motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that plaintiff’s affidavit failed to lay a proper foundation for the documents annexed to the motion papers and that, as a result, plaintiff failed to establish a prima facie case. In addition, defendant cross-moved for an order, pursuant to CPLR 3124 and 3126, to compel depositions. The court below granted partial summary judgment to plaintiff and denied defendant’s cross motion as academic. This appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to its [*2]motion papers. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

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

Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 28, 2006, deemed from a judgment entered on December 8, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 28, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,532.04.

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

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

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

Turning to the merits of defendant’s cross motion for summary judgment, we are of the opinion that the court below correctly denied same. Defendant argued that plaintiff was ineligible to receive reimbursement for no-fault benefits since at the time that the services billed for were rendered, plaintiff was a fraudulently incorporated
professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). In support of said contention, defendant annexed the transcript of an examination under oath of plaintiff’s owner. While said individual denied knowledge of many aspects of the everyday operations of plaintiff, his testimony was inadequate to establish, as a matter of law, that plaintiff is ineligible for reimbursement of no-fault benefits on the ground that plaintiff’s business manager, a non-physician, was the true owner of plaintiff (see id.; Boston Post Rd. Med. Imaging, P.C. v Progressive Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51173[U] [App Term, 9th & 10th Jud Dists 2007]). Accordingly, the court below properly denied defendant’s cross motion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered August 4, 2006. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

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

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

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

Defendant’s cross motion for summary judgment should have been granted. Defendant demonstrated that it timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed [*2](Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]), and defendant’s affirmed peer review report and the affidavit of its peer review chiropractor established prima facie that there was no medical necessity for the equipment provided by plaintiff. Since plaintiff failed to rebut said showing, defendant was entitled to summary judgment dismissing the complaint (see A Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]).

Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered June 16, 2006, deemed from a judgment entered on September 11, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 16, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,253.50.

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

Defendant’s argument that plaintiff did not prove a prima facie case in this action to recover assigned first-party no-fault benefits because plaintiff did not prove that the supplies furnished to plaintiff’s assignor were provided pursuant to a prescription from a health care provider lacks merit. A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we do not otherwise pass upon the propriety of the determination by the court below with respect thereto. [*2]

The affidavit submitted by defendant’s litigation examiner was sufficient to give rise to a presumption that the verification requests and denial of claim forms at issue were mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the litigation examiner conceded that the verification requested concerning plaintiff’s claim for $590 was received on March 19, 2001 and that the denial of claim form was not mailed until April 19, 2001, thereby rendering the denial of claim form untimely as a matter of law and precluding defendant from interposing a defense of lack of medical necessity as to this claim (see Insurance Department Regulations [11 NYCRR] § 65.15 [g], now [11 NYCRR] § 65-3.8). In light of the foregoing, plaintiff was entitled to summary judgment upon its first cause of action.

Defendant’s timely denial of claim form as to the claim for $1,663.50 stated that the claim was denied pursuant to a peer review which found that the supplies furnished by plaintiff to its assignor were not medically necessary. Such a denial of claim form is sufficient to avoid preclusion of the defense of lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). In opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment, defendant annexed an affirmed peer review report which found that the supplies at issue were not medically necessary, thereby establishing defendant’s prima facie entitlement to summary judgment dismissing plaintiff’s second cause of action. Inasmuch as plaintiff offered no medical evidence to rebut defendant’s prima facie case, plaintiff’s motion for summary judgment on its second cause of action should have been denied and defendant should have been granted summary judgment dismissing said cause of action (see A Khodadadi Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

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

Pesce, P.J., and Rios, J., concur.
Decision Date: February 21, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered March 21, 2006, deemed from a judgment entered on April 13, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 17, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,312.75.

Judgment reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for all further proceedings.
In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross
motion for summary judgment. A judgment was subsequently entered. The instant appeal by defendant ensued.
On appeal, defendant asserts that the affidavit by plaintiff’s billing manager, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s billing manager was insufficient to establish that she possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing [*2]of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.
Defendant’s contention that it was entitled to summary judgment upon its cross motion because plaintiff failed to serve responses to defendant’s timely initial and follow-up verification requests lacks merit. The affidavit submitted by defendant stated that it was defendant’s standard office practice and procedure to stamp the date on which its verification requests were mailed in the upper right hand corner of the requests and that the initial and follow-up verification requests were timely mailed on December 2, 2004 and January 11, 2005, respectively. However, the initial and follow-up verification requests annexed to defendant’s cross motion were both date-stamped December 2, 2004 in the upper right hand corner. Thus, the documentary proof annexed to defendant’s cross motion was insufficient to give rise to a presumption that the follow-up verification request was timely mailed pursuant to defendant’s professed standard office practice and procedure (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; PDG Psychological, P.C. v Lumbermans Mut. Cas. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51343[U] [App Term, 2d & 11th Jud Dists 2007]; Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co., 17 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, defendant’s cross motion for summary judgment was properly denied.
Pesce, P.J., and Rios, J., concur.
Decision Date: February 21, 2008