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 (Valerie Braithwaite Nelson, J.), entered November 29, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment to the extent of precluding plaintiff from offering any evidence at trial.

Appeal from so much of the order as granted defendant’s cross motion for summary judgment to the extent of precluding plaintiff from offering any evidence at trial dismissed.

Order, insofar as reviewed, affirmed without 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 based upon, among other things, plaintiff’s failure to comply with a so-ordered stipulation. Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel and various documents annexed thereto. The court below denied plaintiff’s motion on the ground that plaintiff did not make a prima facie showing due to the absence of an affidavit of merit executed by a person with personal knowledge of the facts. The court also granted defendant’s cross motion to the extent of precluding plaintiff from offering any evidence at trial. The instant appeal by plaintiff ensued.

Inasmuch as the affirmation of plaintiff’s counsel was of no probative value because it did not assert a basis of counsel’s personal knowledge of the facts and lay a sufficient foundation for [*2]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 CPLR 4518; Zuckerman v City of New York, 49 NY2d 557 [1980]; Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists]). Although plaintiff subsequently served an affidavit executed by its corporate officer, even if said affidavit was sufficient to demonstrate that the documents annexed to plaintiff’s papers were admissible as business records, plaintiff was not entitled to summary judgment because plaintiff cannot establish its entitlement to judgment as a matter of law by submitting as part of its reply papers sufficient evidence in admissible form to cure defects in its moving papers (see North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d & 11th Jud Dists]).

Since plaintiff failed to submit written opposition to the branch of defendant’s cross motion which was based upon plaintiff’s failure to comply with the so-ordered stipulation which required plaintiff to provide discovery, the branch of the order which granted defendant’s cross motion was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576
[2004]; Maino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s cross motion is dismissed.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., 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 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.
Decision Date: March 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 (Edgar G. Walker, J.), entered March 18, 2005. The order granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days, and denied plaintiff’s cross motion for summary judgment and awarded defendant $50 costs.

Appeal from so much of the order as granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint based upon plaintiff’s failure to provide discovery and plaintiff cross-moved for summary judgment. Plaintiff’s cross motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. However, plaintiff did not address defendant’s motion to dismiss. The court below denied plaintiff’s cross motion, holding, inter alia, that plaintiff did not make a prima facie showing because it failed to lay a sufficient foundation to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form. The court also granted [*2]defendant’s motion to the extent of dismissing the complaint unless plaintiff provided a bill of particulars and responded to outstanding discovery demands within 45 days after service of the order with notice of entry. The instant appeal by plaintiff ensued.

Inasmuch as 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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___,
2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s cross motion for summary judgment was properly denied.

Since plaintiff failed to submit written opposition to defendant’s motion to strike the complaint, that branch of the order which granted defendant’s motion to the extent of requiring plaintiff to serve a bill of particulars and respond to defendant’s disclosure demands was entered on default and no appeal lies therefrom by 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]). As a result, the appeal from so much of the order as granted defendant’s motion is dismissed.

Plaintiff’s remaining contention lacks merit.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 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 (Timothy J. Dufficy, J.), entered August 16, 2005, deemed an appeal from a judgment entered on November 29, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 16, 2005 order granting plaintiff summary judgment, awarded plaintiff the principal sum of $4,289.15.

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

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

On appeal, defendant raises for the first time 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. 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 that it submitted its claim forms to defendant thereby entitling it to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., Misc 3d [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., Misc 3d , 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, the judgment is reversed, the [*2]order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion is denied.

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: March 5, 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 September 26, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted defendant partial summary judgment on its cross motion.

Order, insofar as appealed from, affirmed without costs.

In this action to recover first-party no-fault benefits for medical services provided its assignor, defendant established that in response to plaintiff’s claims for $627.50, $540.80, $612.39, and $338, it issued timely initial and follow-up verification requests, for assignor’s social security number, all of which remain unsatisfied. Defendant’s affidavits set forth the basis of the affiants’ knowledge of the preparation and issuance of the verification request letters and a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 574 [2006]). As an assignor’s social security number is a proper subject of verification (Olympic Chiropractic, P.C. v American Tr. Ins. Co., 14 Misc 3d 129[A], 2007 NY Slip Op 50011[U] [App Term, 2d & 11th Jud Dists]; see generally Cassano v Carb, 436 F3d 74 [2d Cir 2006]), the court below properly denied plaintiff’s motion for summary judgment, granted defendant’s cross motion for summary judgment as to those claims under which it cross-moved for relief, and dismissed those claims as premature (Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 54 [App Term, 2d & 11th Jud Dists 2005]). With respect to the remaining [*2]claim, for $311.53, a triable issue exists as to whether defendant paid for said treatment as part of a prior claim submitted by plaintiff.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: March 5, 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 (Donald S. Kurtz, J.), entered May 25, 2005. The order granted plaintiff’s motion for summary judgment in the principal sum of $2,805 and denied defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, we do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case, as defendant raised no issue in the court below or on appeal with respect thereto.

In opposition to the motion, defendant’s attorney made the conclusory allegation, without personal knowledge of the facts, that defendant had sent several requests for examinations under oath to the insured and that the insured failed to appear. Since defendant failed to properly establish said mailings (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to establish that the 30-day prescribed period in which to deny the claims was tolled (Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded from raising most defenses (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Defendant further opposed plaintiff’s motion asserting that the alleged injuries do not arise out of a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). However, the affidavit by an investigator for the special investigation unit of defendant failed to allege facts either upon personal knowledge or based upon evidence in admissible form with sufficient particularity to establish a “founded belief that the alleged [*2]injur[ies] do[ ] not arise out of an insured incident” (see Central Gen. Hosp., 90 NY2d at 199; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v Eagle Ins. Co, 3 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2003]). Consequently, the court properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: March 5, 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 6, 2006, deemed an appeal from the judgment entered on January 30, 2006 (see Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the January 6, 2006 order which granted plaintiff’s motion for summary judgment, awarded plaintiff the total sum of $10,088.84.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed, claiming, inter alia, that plaintiff’s assignors failed to appear for scheduled independent medical examinations (IMEs), and that there was an issue of fact as to whether the alleged injuries were caused by an insured incident. The court below granted plaintiff’s motion, and a judgment was subsequently entered. On appeal, defendant reiterates the arguments which it made in the court below, i.e., that plaintiff’s assignors, by failing to appear for scheduled IMEs, violated a condition precedent to coverage under the policy, and that defendant had presented a triable issue of fact regarding fraud sufficient to defeat plaintiff’s motion.

The claims at issue were denied by defendant based upon plaintiff’s assignors’ failure to attend scheduled IMEs. Defendant, in opposition to plaintiff’s motion for summary judgment, submitted affidavits from a claims representative and an investigator from its Special Investigative Unit. Neither affiant, however, demonstrated personal knowledge of the mailing of defendant’s verification requests or described a standard office mailing procedure giving rise to a [*2]presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also Ocean Diagnostic Imaging P.C. v New York Central Mut. Fire Ins. Co., 9 Misc 3d 138[A], 2005 NY Slip Op 51772[U] [App Term, 2d & 11th Jud Dists]; cf. Amaze Med. Supply Inc. v General Assur. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50307[U] [App Term, 2d & 11th Jud Dists]). Thus, defendant failed to demonstrate by competent evidence that it mailed the IME requests, or any other documents which would have tolled the 30-day claim determination period (see Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists]). We further note that, in any event, defendant submitted no evidence from anyone with personal knowledge of the nonappearances (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).

While defendant also claimed that plaintiff’s assignors were engaged in fraudulent conduct by virtue of their having failed to attend scheduled IMEs as well as by having made “material misrepresentation[s]” in the presentation of the claims, its submissions were insufficient to establish a defense 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]). The investigatory reports upon which defendant’s investigator relied were unsworn, and the statements in the affidavit of defendant’s investigator were conclusory (see e.g. A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 12 Misc 3d 139[A], 2006 NY Slip Op 51334[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co.,10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]). In view of the foregoing, the judgment is affirmed.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs, in a separate memorandum.

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: March 2, 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 March 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 an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. The court denied plaintiff’s motion on the ground that plaintiff failed to make a prima facie case because, among other things, plaintiff did not lay a sufficient foundation to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as 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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___,
2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied. [*2]

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 2, 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 (Ellen M. Spodek, J.), entered March 24, 2005. The order denied the petition to vacate the master arbitrator’s award.

Order 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 the petitioner’s claims for first-party no-fault benefits (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). 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 note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: February 27, 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 (George J. Silver, J.), entered October 20, 2005. 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 assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment. On appeal, defendant raises for the first time 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. 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., ____ Misc 3d ____ [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., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for summary judgment is denied.
Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: February 27, 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 (Jack M. Battaglia, J.), entered December 8, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action 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 the affidavit by plaintiff’s corporate officer failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as 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., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: February 27, 2007