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 January 6, 2006. The order granted defendant’s motion to compel plaintiff to produce plaintiff’s assignor’s treating providers and an owner of plaintiff for depositions.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for an order compelling plaintiff to produce for a deposition Larisa Likver, D.O., an owner of plaintiff, as well as Leonid Livchits, M.D. and Ronald Pasion, a physical therapist, both of whom allegedly treated plaintiff’s assignor. Defendant claimed that
there was an issue as to whether Dr. Livchits and Mr. Pasion were employees of plaintiff or independent contractors at the time the treatment was rendered. The court granted defendant’s motion and this appeal ensued.

Although the claim forms submitted by plaintiff indicate that Dr. Livchits and Mr. Pasion were independent contractors when the treatments were rendered, plaintiff insists that these were typographical errors and that they were in fact employees of plaintiff. In support of its assertion, plaintiff annexed what purports to be W-2 forms issued by plaintiff to Dr. Livchits and Mr. Pasion. Inasmuch as CPLR 3101 (a) states, “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . [*2]a party, or the officer, director, member, agent or employee of a party,” the court properly ordered plaintiff to produce Dr. Likver, Dr. Livchits and Mr. Pasion for depositions (see CPLR 3101 [a] [1]; see also 7 Carmody-Wait 2d § 42:56, at 100-102; cf. CPLR 3106 [b]; Doomes v Best Tr. Corp., 303 AD2d 322 [2003]; A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists]). To the extent plaintiff argues for the first time on appeal that it does not control the witnesses, such a
conclusory allegation is dehors the record (cf. A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U], supra).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: June 4, 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 (Eileen Nadelson, J.), entered April 5, 2005. The order denied plaintiffs’ motion for partial summary judgment.

Order affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs’ motion for partial summary judgment was supported by an affirmation of plaintiffs’ counsel, an affidavit of plaintiffs’ billing manager, and various documents
annexed thereto. In opposition to the motion, defendant asserted plaintiffs’ assignors’ failure to cooperate with defendant’s investigation and plaintiffs’ failure to comply with its requests for verification. The court below denied plaintiffs’ motion and the instant appeal ensued.

On appeal, defendant asserts that the affidavit by plaintiffs’ billing manager submitted in support of their motion, failed to lay a proper foundation for the documents annexed to plaintiffs’ moving papers and that, as a result, plaintiffs failed to establish a prima facie case. We agree. The affidavit submitted by plaintiffs’ billing manager was insufficient to establish that he [*2]possessed personal knowledge of plaintiffs’ practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiffs’ moving papers. Accordingly, plaintiffs failed to make a prima facie showing of their 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, plaintiffs’ motion for partial summary judgment was properly denied.

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

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: June 4, 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 (Edgar G. Walker, J.), entered on March 22, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order modified by denying defendant’s cross motion for summary judgment; 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 “affidavit” by a corporate officer of plaintiff, and various documents annexed thereto. We agree with the court’s
conclusion that the “affidavit” suffered from multiple defects, such that it cannot be determined that the affidavit was properly sworn to, thereby rendering it insufficient to establish plaintiff’s entitlement to judgment as a matter of law. Consequently, plaintiff’s motion for summary judgment was properly denied.

Defendant’s cross motion for summary judgment was premised upon the allegation that plaintiff’s assignor was injured, if at all, in a staged accident. However, defendant did not prove, as a matter of law, that the alleged injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Zuckerman v City of New [*2]York, 49 NY2d 557 [1980]). As a result, defendant’s cross motion seeking summary judgment should have been denied.

Golia, J.P., Rios 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 (Dolores L. Waltrous, J.), entered August 18, 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 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 attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that plaintiff’s moving papers did not proffer facts in admissible form so as to establish plaintiff’s prima facie entitlement to judgment as a matter of law. The court denied plaintiff’s motion, holding that there was an issue of fact as to whether the services were rendered by an independent contractor. The instant appeal by plaintiff ensued.

Since 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, 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, [*2]2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied albeit on other grounds. In light of the foregoing, we reach no other issue.

Golia, J.P., Rios 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, Queens County (Joseph Esposito, J.), entered March 6, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below denied the motion on the ground that defendant’s opposing papers demonstrated the existence of a triable issue of fact. Plaintiff appeals from the denial of its motion for summary judgment.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate officer, 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 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]; 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.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: May 25, 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 (Gerald Dunbar, J.), entered January 19, 2006. 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, the court denied plaintiff’s motion for summary judgment finding that there was an issue of fact as to whether plaintiff’s bill used an improper code. The instant appeal by plaintiff ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate officer,
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 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]; 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, albeit on other grounds.
Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: May 25, 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 (Joseph Esposito, J.), entered January 4, 2006. The order granted on default defendant’s motion for severance.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff is appealing from an order which granted defendant’s motion for severance. However, since plaintiff failed to submit opposition to defendant’s motion, the order which granted defendant’s motion for severance was entered on default and no appeal lies therefrom by plaintiff, the defaulting party (see CPLR 5511; Coneys v Johnson
Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]; Ava Acupuncture P.C. v Greyhound Lines, Inc., 14 Misc 3d 141[A], 2007 NY Slip Op 50356[U] [App Term, 2d & 11th Jud Dists]). As a result, the appeal is dismissed.

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: May 24, 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 (Loren Baily-Schiffman, J.), entered February 3, 2006. The order granted 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 granted. The sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was a triable issue of fact because it possessed a founded belief that the alleged injuries did not arise from a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). In the present case, defendant failed to establish such a founded belief. The accident reports and other documents offered by defendant do not constitute evidentiary proof in admissible form and are without probative value, as they were not sworn or supported by an affidavit of someone alleging personal knowledge of the facts included therein or of the preparation of said documents (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d & 11th Jud Dists 2005]).
Accordingly, defendant failed to demonstrate the existence of a triable issue of fact.

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

Golia, J., dissents in a separate memorandum.
Golia, J., dissents and votes to reverse the order and deny plaintiff’s motion for summary judgment in the following memorandum:

Contrary to the holding of the majority, I find that the sworn and detailed affidavit by the defendant’s Special Investigative Unit investigator established 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]). That affidavit, which referenced and was accompanied by police accident reports and other unsworn documents, reveals among other information, that the same vehicle that was involved in this accident was involved in at least two other accidents which occurred within one month of the policyholder first obtaining the underlying insurance policy. In addition, all of these “accidents” were remarkably similar to each other and similar to a series of other accidents that are under investigation. They all involve rear-end impacts, many of the addresses appear to be the same as that used by this insured, and in each loss there was only a single occupant in one vehicle and an operator with three passengers in the other vehicle.

These facts are sufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident (see Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co., 6 Misc 3d 62, 64-65 [Golia, J., dissenting]).
Decision Date: May 24, 2007

—[*1] Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault insurance benefits under certain contracts of insurance, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), entered May 17, 2006, as granted that branch of the plaintiff’s cross motion which was for summary judgment on the first cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

In support of that branch of its cross motion which was for summary judgment on the first cause of action, the plaintiff, Westchester Medical Center, as assignee of Demetrio Recinos (hereinafter WMC), demonstrated its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the requisite billing forms, a certified mail receipt, a signed return receipt card which referenced Recinos and the forms, and an affidavit of its biller stating that the defendant failed either to pay or to deny the claim (see New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683 [2007]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006], lv granted 8 NY3d 807 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2006]). This evidence demonstrated that the defendant received the no-fault billing and failed to respond within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., supra). In opposition, the defendant failed to raise a triable issue of fact. There is no evidence that it timely objected to the completeness of the [*2]claim forms, or sought verification of Recinos’s assignment. Therefore, the defendant waived any defenses based thereon, including the plaintiff’s purported lack of standing to maintain the first cause of action (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., supra; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]). Accordingly, the Supreme Court correctly granted that branch of the plaintiff’s cross motion which was for summary judgment on the first cause of action.

The defendant’s remaining contentions either are improperly raised for the first time in this Court or are without merit. Rivera, J.P., Florio, Dillon and Carni, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Adeel Jamaluddin of counsel), for respondent.

In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), dated October 20, 2006, which granted the defendant’s cross motion for summary judgment dismissing the second, third, and fourth causes of action and, in effect, denied its motion for summary judgment on those causes of action.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for summary judgment on the second, third, and fourth cause of action is granted, and the defendant’s cross motion for summary judgment dismissing the second, third, and fourth causes of action is denied.

With respect to the second cause of action involving health services provided to Kevin Kane to recover no-fault benefits under an insurance contract and the third cause of action involving health services provided to Gladys Navarro, limited to recovery of an attorney’s fee and statutory interest, the plaintiff demonstrated its entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by the defendant and that payment of the no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Mount Sinai Hosp. v Joan Serv. Corp., 22 AD3d 649, 650 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]). While the defendant, in its cross motion, initially denied [*2]that the plaintiff provided requested verification material to the defendant triggering its obligation to either pay or deny the claims (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]), the defendant failed to rebut the plaintiff’s showing that the verification material was actually mailed to the defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 548 [2006]). Here, the plaintiff, on the second and third causes of action, proffered the certified mail receipts with postmarks of September 7, 2005, as to Kane and September 16, 2005, as to Navarro, as well as specific item numbers and notations to the Kane and Navarro medical records. The plaintiff also proffered the return receipt card with the same item numbers and notations indicating that they had been received by “W. Deall,” a representative of the defendant on September 9, 2005, as to Kane and September 19, 2005 as to Navarro. A presumption of receipt was created by the signed certified mail return receipt and the defendant’s denial of receipt of the verification material was insufficient to raise a triable issue of fact (see Matter of Fodor v MBNA Am. Bank, N.A., 34 AD3d 473 [2006]; Matter of State Farm Mut. Auto. Ins. Co. [Kankam], 3 AD3d 418, 419 [2004]; cf. New York & Presbyt. Hosp. v Allstate Ins. Co., supra at 548). Accordingly, the Supreme Court should have granted summary judgment to the plaintiff on the second and third causes of action and erred in awarding summary judgment to the defendant on those causes of action.

With respect to the fourth cause of action to recover no-fault benefits but involving health services provided to Alyssa Arater, the plaintiff similarly demonstrated its entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by the defendant and that payment of the no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Mount Sinai Hosp. v Joan Serv. Corp., supra; Mary Immaculate Hosp. v Allstate Ins. Co., supra). The defendant presented evidence in opposition to the motion and in support of its cross motion that the plaintiff failed to provide verification material, i.e. medical records, requested in writing by the defendant on October 21, 2005 (see 11 NYCRR 65-3.5 [b]). The plaintiff, in opposition to the cross motion and in further support of its motion for summary judgment, proffered the certified mail receipt with a postmark of February 13, 2006, an item number and a notation to the requested medical records. An unsigned letter dated February 13, 2006, from Hospital Receivables Systems, Inc., was also annexed as an exhibit. It was addressed to the defendant’s Farmingdale, New York address, stated that Arater’s complete medical record was enclosed and referenced, inter alia, the date of the accident and the plaintiff’s file number which was “WMC-NF-2783.” The plaintiff further proffered a copy of the United States Postal Service “Track & Confirm” printout with the same certified mail item number indicating that a representative of the defendant signed for the item on February 15, 2006. These submissions demonstrate that a mailing of the verification material occurred and that the mailed items were clearly related to the same claim (see Vista Surgical Supplies, Inc. v Statewide Ins. Co., 12 Misc 3d 131[A], 2006 NY Slip Op 51118[U]).

The defendant mistakenly places complete reliance upon this Court’s determination in New York & Presbyt. Hosp. v Allstate Ins. Co. (supra) to support its position that the plaintiff’s evidence was inadequate. Under the particular facts of that case, we determined that the certified mail receipt and the “Track & Confirm” printout were insufficient to support a grant of summary judgment to the plaintiff. Specifically, no evidence was presented that the material purportedly mailed to Allstate was mailed under the proffered certified mail receipt number. Here, however, the plaintiff presented sufficient evidence, despite the absence of a signed return receipt card, to demonstrate that it mailed the requested medical records to the defendant. Most notably, both the cover letter and the outgoing certified mail receipt contained a handwritten notation that the items being mailed were the Arater medical records. Moreover, the certified mail receipt, with a postmark [*3]of February 13, 2006, matched the date on the cover letter, and the “Track & Confirm” printout indicated that an item under the same mailing number was delivered on February 15, 2006, in Farmingdale, New York, and signed for by “W. Deall,” the same person who signed for the records relating to the second and third causes of action. As such, the defendant’s assertion that the plaintiff failed to respond to its request for verification was sufficiently rebutted by the plaintiff’s submissions which established the plaintiff’s entitlement to summary judgment since the defendant did not tender payment within 30 days of receiving the verification material (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1], [2]). Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment on the fourth cause of action, and erred in granting that branch of the defendant’s cross motion which was for summary judgment dismissing that cause of action. Rivera, J.P., Florio, Dillon and Carni, JJ., concur.