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 (Eileen Nadelson, J.), entered December 23, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs and, upon searching the record, defendant’s cross motion for summary judgment dismissing the action 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. The court denied both motions and plaintiff appeals from so much of the order as denied its motion for summary judgment.

On appeal, defendant asserts that the affidavit by plaintiff’s owner, submitted in support of the motion, 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 plaintiff’s owner 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 (Bath Med. Supply, [*2]Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; 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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Although defendant did not cross-appeal from so much of the order as denied its cross motion for summary judgment dismissing the action, pursuant to this Court’s authority to search the record and grant summary judgment to a non-appealing party, the cross motion for summary judgment should be granted (CPLR 3212 [b]; see e.g. Dunham v Hilco Constr. Co., 89 NY2d 425, 429-230 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]; Ocean Diagnostic Imaging, P.C. v Nationwide Mut. Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50477[U] [App Term, 2d & 11th Jud Dists]). Defendant’s peer review report established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted, thereby entitling defendant to the relief it sought below (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists] [“(T)he insurer . . . if not precluded, may rebut the inference (of medical necessity) by proof in admissible form establishing that the health benefits were not medically necessary. . . . If not refuted by the no-fault benefits claimant, such proof may entitle the insurer to summary judgment”]).

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
A KHODADADI RADIOLOGY, P.C.
a/a/o CARLOS GOMEZ,

Appellant,

-against-
NY CENTRAL MUTUAL FIRE INS. CO.,

Respondent. [*3]

Golia, J.P., concurs with 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: July 03, 2007

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 (Bonnie P. Chaikin, J.), entered March 15, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for renewal of its prior 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. The motion was supported by an affirmation of counsel, an affidavit of an officer of plaintiff, and various documents annexed thereto. In opposition to plaintiff’s motion, defendant argued, inter alia, that the affirmation of counsel was of no probative value and that the affidavit of plaintiff’s officer was insufficient to establish personal knowledge of the facts set forth therein. The court below denied plaintiff’s motion on this basis and plaintiff moved to renew the motion, annexing a more detailed affidavit of its officer. The court below denied the motion to renew on the ground that plaintiff failed to set forth any facts not previously known at the time of submission of the original motion. The instant appeal ensued.

CPLR 2221 (e) (2) provides that a motion for leave to renew a prior motion must be based upon “new facts not offered on the prior motion that would change the prior determination” or must show “that there has been a change in the law that would change the prior determination.” Furthermore, the motion papers must contain a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). In the instant case, plaintiff did not proffer a reasonable justification for its failure to present the facts upon which its [*2]renewal motion was based to the motion court on its prior motion for summary judgment (see T & B Port Washington, Inc. v McDonough, 34 AD3d 785 [2006]; Renna v Gullo, 19 AD3d 472 [2005]). Moreover, to the extent that plaintiff based its motion upon changes in the law, the cases proffered by plaintiff, which purportedly represented such changes, were neither dispositive of the issue of the sufficiency of plaintiff’s officer’s affidavit nor did they represent changes in the decisional law. Accordingly, the motion was properly denied.

We note that where there is no change in the decisional law, but a party is of the opinion that the motion court overlooked or misapprehended existing law, the proper vehicle is a motion to reargue (CPLR 2221 [d]). In the instant case, however, plaintiff’s motion, to the extent that it could be deemed to be seeking reargument, was untimely made.

McCabe, J.P., and Tanenbaum, J., concur.

Lippman, J., taking no part.
Decision Date: June 29, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 29, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by plaintiff’s owner, and various documents annexed thereto. The affidavit executed by plaintiff’s owner stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. The court below
denied the motion on the ground that plaintiff’s owner failed to set forth his job duties or the basis for his personal knowledge, if any, of plaintiff’s billing procedures so as to lay a foundation for the admission of plaintiff’s business records. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s owner 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see [*2]Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Dan Medical, 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.

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

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: June 29, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered March 2, 2006. The judgment denied the petition to vacate the master arbitrator’s award and dismissed the proceeding.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claims for first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court
below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

We further note that the record reveals that the petition was timely filed (CPLR
7511 [a]).

Weston Patterson, J.P., Golia and Belen, 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 (Alice Fisher Rubin, J.), dated August 10, 2005. The order denied defendant’s cross motion for summary judgment and granted plaintiff’s motions for summary judgment.

Order modified by providing that plaintiff’s motions for summary judgment are denied; 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, in one motion, to recover upon its claims for treatment allegedly provided assignor Yekaterina Panina, and in a second motion, for summary judgment upon its claims for treatment provided assignors Iraida Fundator,
Nikita Vesensky, Arshavir Amatunyan, and Ruslan Babskiy. Defendant cross-moved for summary judgment. The court granted plaintiff’s motions and denied defendant’s cross motion. Defendant appeals.

Plaintiff’s proof of mailing of the claim forms concerning the services allegedly provided Panina, which defendant denied receiving, was insufficient (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). As a result, plaintiff’s motion for summary judgment upon those claims should have been denied. [*2]

As to the remaining claims, set forth in plaintiff’s second motion, defendant’s NF-10 claim denial forms and the affidavit of its claims examiner conceded receipt of the claims of assignors Fundator, Vesensky, Amatunyan and Babskiy, in the amounts, respectively, of $6,504.86, $964.50, $2,025.42, and $2,379.06, thereby curing the deficiencies in plaintiff’s proof of mailing with respect thereto (see Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co., 13 Misc 3d 127[A], 2006 NY Slip Op 51672[U] [App Term, 2d & 11th Jud Dists]; see also Oleg Barshay, DC., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). As there was no proof of the mailing of the remaining claims for which plaintiff sought summary judgment, and defendant did not admit the claims’ receipt, summary judgment in favor of plaintiff as to those sums should also have been denied.

With respect to the claims for which defendant conceded receipt, its denials were untimely since its requests for examinations under oath did not toll the 30-day claim determination period inasmuch as the insurance regulations applicable at the time lacked a provision entitling an insurer to an examination under oath (see Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50611[U] [App Term, 2d & 11th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]), thereby precluding most defenses, including “fraudulent claims” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997]). However, defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Defendant’s documentation included transcripts of the examinations under oath of several persons involved in the incident, which contain numerous statements that are implausible on their face with respect to matters material to the determination of whether the incident was staged to defraud defendant. Defendant also established that plaintiff’s billing agency and a medical provider sharing plaintiff’s professional address have entered guilty pleas to grand larceny and scheme to defraud in the first degree, which charges were based on the submission of false no-fault benefits claims. As a condition of the pleas, the billing agency and provider were required, respectively, to withdraw pending claims and to refrain from filing further claims for treatment alleged to have been provided in the period in which the instant treatment, and the claims based thereon, occurred. We note that some of plaintiff’s assignors had contact with the aforementioned provider for injuries alleged to have been caused by the incident underlying all of plaintiff’s claims. On the facts herein, we find that defendant established that its denials were based upon a “founded belief that the alleged injur[ies] d[id] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199) to the extent of warranting a trial as to coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]; A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists]).

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

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK [*3]
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
EAST ACUPUNCTURE, P.C.
a/a/o IRAIDA FUNDATOR, NIKITA VESENSKY,
YEKATERINA PANINA, ARSHAVIR AMATUNYAN
and RUSLAN BABSKIY,

Respondent,

-against-

ELECTRIC INSURANCE CO.,
Appellant.

Golia, J.P., concurs in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize 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.

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 (Eileen Nadelson, J.), entered December 3, 2004. 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 an action to recover assigned first-party no-fault benefits, a plaintiff 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 is overdue (see e.g. 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]). In the instant case, the denial of claim form (NF-10) annexed to plaintiff’s moving papers was sufficient to establish that plaintiff’s claims were submitted to and received by defendant (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). To the extent defendant claims that plaintiff failed to make a prima facie showing that plaintiff’s claims were overdue because the NF-10 issued by defendant and annexed to plaintiff’s moving papers indicated that plaintiff’s claims were denied 10 days after defendant received the claims, such an argument lacks merit (see Insurance Law 5106 [a]). [*2]

In opposition to plaintiff’s motion seeking summary judgment, defendant argued that plaintiff was not entitled to summary judgment because the collision was in furtherance of an insurance fraud scheme. We find that the affidavit of defendant’s investigator was sufficient to demonstrate that the defense was based upon a “founded belief that the 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]). Since defendant raised a triable issue of fact as to whether there was a lack of coverage, plaintiff was not entitled to summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

In addition, defendant also asserted that plaintiff was not entitled to summary judgment since there was an issue of fact as to whether plaintiff was ineligible for reimbursement of no-fault benefits because plaintiff was alleged to be a fraudulently incorporated medical provider. It is well settled that fraudulently incorporated medical corporations are not entitled to reimbursement of no-fault benefits (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d & 11th Jud Dists 2006]). In light of the foregoing, defendant’s opposition papers were sufficient to raise an issue of fact as to whether plaintiff was entitled to reimbursement of no-fault benefits (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2007 NY Slip Op 27135 [App Term, 2d & 11th Jud Dists]; Midwood Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]).

Pesce, P.J., and Rios, 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 : PESCE, P.J., GOLIA and RIOS, JJ.
VA ACUTHERAPY ACUPUNCTURE, P.C.
a/a/o ANTONIO ARAVJO,

Respondent, [*3]

-against-
STATE FARM INS. CO.,

Appellant.

Golia, J., concurs with 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.
Decision Date: June 15, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered January 4, 2006. The order granted plaintiff’s motion for partial summary judgment with respect to the cause of action on behalf of assignor Hypolite Francis and denied defendant’s cross motion for partial summary judgment with respect to the cause of action on behalf of said assignor.

Order reversed without costs and matter remitted to the Civil Court, Kings County and held in abeyance for a new determination of the motion and cross motion following a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for partial summary judgment in the sum of $1,454,98 on the claims submitted with respect to Hypolite Francis and defendant cross-moved for partial summary judgment dismissing those claims, inter alia, on the ground that at the time of the accident, Francis was acting in the course of his employment, requiring that plaintiff pursue its compensation claim before the Workers’ Compensation Board. The court granted plaintiff’s motion for partial summary judgment and denied defendant’s cross motion. Defendant’s appeal ensued. [*2]

We find defendant’s proof, including the police accident report, was sufficient to raise a question of fact as to whether Francis was acting as an employee at the time of the accident, which issue must be resolved by the Workers’ Compensation Board (O’Rourke v Long, 41 NY2d 219, 224 [1976]; Matter of Piku v 24535 Owners Corp., 19 AD3d 722, 723 [2005]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]). Accordingly, the order is reversed and the matter remanded to the court below with the direction that the court hold the matter in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’
Compensation Law (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305, 305 [2006]).
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: June 8, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered October 24, 2005, deemed an appeal from a judgment entered on December 9, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 24, 2005 order denying defendant’s motion for summary judgment and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $7,498.62.

Judgment reversed without costs, order entered October 24, 2005 vacated insofar as it granted plaintiff’s cross motion for summary judgment and plaintiff’s cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing plaintiff’s complaint based upon plaintiff’s assignor’s failure to appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant annexed, inter alia, copies of claim forms, denial of claim forms (NF-10s) and letters scheduling the IMEs. Plaintiff cross-moved for summary judgment. Plaintiff’s cross motion was supported by an affirmation of plaintiff’s counsel and by an affidavit executed by Boris Zigmond, D.C., the “principal doctor” of plaintiff. There were no claim forms or NF-10s [*2]annexed with its cross motion. Rather, Zigmond stated in his affidavit that he was “informed” that the foregoing documents were annexed to defendant’s motion. The court below denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit submitted by Zigmond in support of the cross motion, failed to lay a proper foundation for the documents annexed to defendant’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by Zigmond was insufficient to establish that he possessed sufficient personal knowledge so as to lay a foundation for the admission, as
business records, of the documents upon which plaintiff relied. 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]; 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 cross motion for summary judgment should have been denied.

With respect to defendant’s motion based upon the assignor’s failure to appear for scheduled IMEs, the affidavit submitted by defendant in support of its motion was insufficient to establish the mailing of the IME notices and the assignor’s nonappearance at the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). To the extent defendant also sought dismissal of some of plaintiff’s claims on the ground that the fees charged were not in conformity with the Workers’ Compensation fee schedule, defendant did not proffer sufficient evidence to establish as a matter of law that said claims reflected the incorrect amount for the services provided (see Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op
50388[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the court below properly denied defendant’s motion for summary judgment.

Pesce, P.J., and Rios, 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 : PESCE, P.J., GOLIA and RIOS, JJ.
TRIBORO CHIROPRACTIC AND ACUPUNCTURE, PLLC
a/a/o CRYSTAL WILLIAMS,

Respondent,

-against- [*3]
NEW YORK CENTRAL MUTUAL
FIRE INSURANCE COMPANY,

Appellant.

Golia, J., concurs with 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.
Decision Date: June 8, 2007

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 (Sharon M.J. Gianelli, J.), dated April 5, 2006. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, reversed without costs and defendant’s cross motion for summary judgment dismissing the complaint denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment
on the grounds, inter alia, that plaintiff was ineligible for reimbursement of no-fault benefits, citing State Farm Mut. Auto. Ins. Co. v Mallella (4 NY3d 313 [2005]), and that plaintiff lacked standing to sue because it sold its right to collect upon the bills at issue. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, holding that defendant proffered “sufficient evidence that plaintiff is not wholly owned by licensed health care providers as required by Business Corporations [sic] Law § 1503 (b) and § 1507.” Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion for summary judgment.

In support of its cross motion, defendant submitted an unverified complaint and exhibits annexed thereto filed by, among others, plaintiff in an action it commenced in the Supreme [*2]Court, Kings County wherein plaintiff alleged that it entered into a contract to sell accounts receivable. In further support of its cross motion, defendant proffered an affidavit submitted in the Supreme Court action in which the affiant swore that plaintiff agreed to sell its accounts receivable. However, these documents are not dispositive of this action since they constitute informal judicial admissions which are “evidence of the fact or facts admitted . . . the circumstances of which may be explained at trial” (Baje Realty Corp. v Cutler, 32 AD3d 307, 310 [2006] [citations and internal
quotation marks omitted]; see also Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996]). Upon this motion, the record does not establish that plaintiff sold the right to recover upon the claims which are at issue in this action.

To the extent defendant asserts that plaintiff is ineligible for reimbursement of no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, supra), the record does not, at this juncture, support such a determination. Indeed, the unsigned transcript of the testimony given by plaintiff’s principal at an examination under oath in connection with a claim made by a different medical corporation owned by said principal was insufficient to establish, as a matter of law, that plaintiff is owned or controlled by someone other than a licensed medical professional. Similarly, while defendant alleges that plaintiff has channeled the bulk of its profits to a management company and to companies from which it leases its premises and its medical equipment, all of which are related entities, the record lacks sufficient facts to establish the extent to which plaintiff’s profits are being shared. Accordingly, upon this record, it cannot be said, as a matter of law, that plaintiff is ineligible for reimbursement of no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, supra). Therefore, defendant’s cross motion for summary judgment dismissing the action should have been denied since questions of fact exist as to whether plaintiff is eligible for reimbursement of no-fault
benefits and, if so, whether plaintiff sold the accounts which were the subject of this action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 7, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 9, 2005, deemed an appeal from a judgment entered on May 8, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 9, 2005 order granting plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment on plaintiff’s claims regarding assignors Arsen Manukyan, Tsaruk Sarkisian, Dejan Nikolic, Nunu Dzhgamaia and Tsira Gogadze, awarded plaintiff the sum of $24,157.78.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment vacated and plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $900 and $154.30 claims relating to assignor Dejan Nikolic and, with respect to assignor Arsen Manukyan, upon the $400 claim dated February 19, 2003, the $300 claim dated April 10, 2003 and the $700 claim, and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining claims.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed the motion. The court below granted [*2]plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment on all of its claims regarding assignors Arsen Manukyan, Tsaruk Sarkisian, Dejan Nikolic, Nunu Dzhgamaia and Tsira Gogadze. The instant appeal by defendant ensued.

Since defendant raised no issue on appeal regarding 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.

With regard to the motor vehicle accident of May 27, 2002, plaintiff submitted two bills in the amounts of $900 and $154.30 for services provided to assignor Dejan Nikolic. Although defendant denied these claims based upon Nikolic’s alleged failure to appear for scheduled independent medical examinations, defendant did not submit an affidavit from someone with personal knowledge regarding his failure to appear. As a result, defendant failed to raise a triable issue of fact with regard to said claims (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

With respect to the motor vehicle accident of November 25, 2002, defendant asserted that plaintiff was not entitled to recover upon the bills for services provided to assignors Arsen Manukyan, Tsaruk Sarkisian, Nunu Dzhgamaia and Tsira Gogadze on the ground that the injuries sustained were not causally related to the accident. In support of said defense, defendant submitted an unsworn accident analysis report and, with respect to Arsen Manukyan, annexed a copy of an unsworn peer review report from a chiropractor and an affirmed peer review report from Jacquelin Emmanuel, M.D. The peer review report from the chiropractor as well as the accident analysis report were inadmissible and, as such, could not establish defendant’s defense that the injuries sustained were not causally related to the accident (see Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists]). In addition, although Dr. Emmanuel’s peer review report was affirmed, it merely concluded that said assignor was not disabled. As a result, said peer review report was insufficient to demonstrate that defendant’s defense of a lack of nexus between the accident and the injuries claimed was based upon a “founded belief that the 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]). However, the peer review reports submitted with respect to assignors Tsaruk Sarkisian, Nunu Dzhgamaia and Tsira Gogadze were affirmed by Robert Israel, M.D., who concluded that the injuries they sustained were not related to the November 25, 2002 accident. Said peer review reports were sufficient to establish the existence of a triable issue of fact with regard to the bills submitted on behalf of said assignors (see Central Gen. Hosp., 90 NY2d at 199).

In addition, defendant’s litigation representative established that defendant timely denied bills relating to Arsen Manukyan in the amounts of $914.33, $500, $400 (dated January 27, 2003) and $300 (dated March 3, 2003) on the ground that “a prescribed authorization or assignment of benefits was not submitted and/or was not properly executed.” Thus, defendant raised an issue of fact with respect thereto (see A.B. Med. Servs. PLLC v Peerless, Ins. Co., 13 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2006]; see also Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]).

Accordingly, plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $900 and $154.30 claims relating to assignor Dejan [*3]Nikolic and, with respect to assignor Arsen Manukyan, upon the $400 claim dated February 19, 2003, the $300 claim dated April 10, 2003 and the $700 claim, and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining claims.

Pesce, P.J., and Rios, 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 : PESCE, P.J., GOLIA and RIOS, JJ.
FIRST HELP ACUPUNCTURE, P.C.
a/a/o ARSEN MANUKYAN, TSARUK SARKISIAN,
DEJAN NIKOLIC, NUNU DZHGAMAIA,
TSIRA GOGADZE and JANELLE PHILOGENE,

Respondent,

-against-
PROGRESSIVE NORTHEASTERN INS. CO.,

Appellant.

Golia, J., concurs with 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.

In the first instance I believe that this Court cannot abrogate its mandate to insure that, at a bare minimum, a prima facie case must be presented by a plaintiff before judgment may be awarded or affirmed.

Furthermore, for the reason stated in my dissent in Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co. (6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]), I find that unsworn reports when submitted in opposition to a motion for summary judgment are sufficient for the purpose of raising a triable issue of fact (see also Levbarg v City of New York, 282 AD2d 239, 241 [2001]).
Decision Date: June 5, 2007