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 (Robin S. Garson, J.), entered on November 16, 2005. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, for summary judgment.

Order reversed without costs and defendant’s motion to dismiss the complaint granted.

In this action, plaintiff seeks to recover first-party no-fault benefits for health care services rendered to its assignors. In a prior cross motion, defendant sought to dismiss the complaint for plaintiff’s failure to comply with discovery or, in the alternative, to compel discovery. In support thereof, defendant’s attorney noted that plaintiff’s principal had failed to provide discovery with respect to her ownership, operation and control of plaintiff (see generally State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]). By order dated December 28, 2004, plaintiff was directed to respond to written interrogatories and to produce an appropriate representative for a deposition.

In the instant motion, defendant seeks to dismiss the complaint pursuant to CPLR 3126 for plaintiff’s continued failure to provide certain discovery, or, in the alternative, for summary judgment. In defendant’s moving papers, it is asserted that plaintiff’s principal failed to respond to any questions regarding the ownership, operation or control of plaintiff. Said motion was unopposed. The court below denied the motion.

In Lexington Acupuncture, P.C. v State Farm Ins. Co. (12 Misc 3d 90, supra), this court held that the defendant insurance company could properly seek discovery of information regarding whether plaintiff was fraudulently incorporated. Plaintiff failed to fully comply with [*2]the December 28, 2004 order. Moreover, plaintiff failed to oppose the
instant motion. In view of the foregoing, defendant’s motion to dismiss the complaint pursuant to CPLR 3126 should have been granted.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: February 14, 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 Suffolk County, Third District (C. Steven Hackeling, J.), dated October 13, 2005. The order denied defendant’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered by plaintiff to its assignor, defendant insurer moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs) which had been scheduled prior to defendant’s receipt of the claim forms. In support of the motion, it submitted, inter alia,
copies of plaintiff’s three proofs of claim, copies of its claim denial forms, an affidavit of its no-fault claims examiner (which was sufficient to establish both defendant’s receipt of the claims and the mailing of the claim denials) and an affidavit of an employee of Alternative Consulting and Examinations, the company which scheduled the IMEs (which was sufficient to establish mailing of the IME scheduling letters to the assignor). The court denied defendant’s motion for summary judgment, finding that there was a triable issue of fact as to medical necessity, and this appeal ensued.

In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]), the Appellate Division, Second Department, held that when an insurer moves for summary judgment to dismiss an action based upon an assignor’s failure to appear for IMEs which were requested prior to the submission of the claim forms, it must “establish, prima facie, that it mailed the notices of the IMEs . . . and that . . . [plaintiff’s assignor] failed to appear for the IMEs.” In that case, the insurer failed to meet its burden of proof in admissible form because it submitted no evidence from anyone with personal [*2]knowledge of the mailings or of the nonappearances. While defendant herein established proper mailing of the IME
requests, it did not submit evidence in admissible form from anyone with personal knowledge of the nonappearances. Since defendant failed to meet its burden, its motion for summary judgment was properly denied.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: February 14, 2007

—[*1] Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox, LLP, New York, N.Y. (Roy J. Karlin of counsel), for appellant.

Shestack & Young, LLP, New York, N.Y. (Jamie B. Levy of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from a judgment of the Supreme Court, Queens County (Rios, J.), entered July 20, 2006, which denied the petition and dismissed the proceeding.

Ordered that the judgment is reversed, on the law, with costs, and the petition to permanently stay arbitration is granted.

The respondent’s failure to file a sworn statement with the petitioner after the alleged hit-and-run accident in accordance with the condition precedent of the supplemental uninsured motorist endorsement of his insurance policy, vitiated coverage (see Matter of Empire Ins. Co. v Dorsainvil, 5 AD3d 480, 481 [2004]; Matter of Legion Ins. Co. v Estevez, 281 AD2d 420 [2001]; Matter of Aetna Life & Cas. v Ocasio, 232 AD2d 409 [1996]; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636, 637 [1995]). Contrary to the respondent’s contentions, the policy language which mirrors the prescribed endorsement of 11 NYCRR 60-2.3 (f) is not ambiguous. Moreover, the fact that the petitioner received some notice of the accident by way of an application for no-fault benefits did not negate the breach of the policy requirement (see Matter of Allstate Ins. Co. v Estate of Aziz, 17 AD3d 460, 461 [2005]; Matter of American Home Assur. Co. v Joseph, 213 AD2d 633 [1995]). Schmidt, J.P., Crane, Fisher and Dickerson, 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 (Eileen Nadelson, J.), entered December 19, 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 moved for summary judgment. The court below denied the motion on the ground that plaintiff’s moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its 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 , 2007 NY Slip Op [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 was properly denied.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: February 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 (Peter Paul Sweeney, J.), entered October 21, 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, the court below denied plaintiff’s motion for summary judgment on the ground that plaintiff failed to make a prima facie showing of its entitlement to summary judgment. Contrary to plaintiff’s contention, we agree with the court below that plaintiff’s moving papers were insufficient (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]). Accordingly, the order 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:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to follow certain propositions of law
set forth in the case cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: February 7, 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 (Randy Sue Marber, J.), entered May 10, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services provided its assignor, plaintiff moved for summary judgment. The court below denied the motion and we affirm.As the court below properly determined, plaintiff’s supporting affidavit failed to assert a proper foundation to admit plaintiff’s exhibits as business records. The affidavit, by someone identified only as plaintiff’s “corporate officer,” did
not set forth the affiant’s personal knowledge of plaintiff’s business practices and procedures for creating bills to establish the admissibility of the claims forms and of the other documents annexed to the affidavit, pursuant to the business records exception to the hearsay rule (see CPLR 4518; 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]). Indeed, such an affidavit is of no more probative value than an attorney’s affirmation (Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]).

We note that, contrary to plaintiff’s contention, even where an insurer’s denial of claim form, acknowledging receipt of claims, is properly placed before the court, it “merely establishe[s] that defendant received claim forms submitted by, or on behalf of plaintiff, but [does] not concede the admissibility of the purported claim forms or the facts set forth therein” (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]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur. [*2]
Decision Date: February 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 (Kathy J. King, J.), entered October 4, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a health care 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 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 6, 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 (Milagros A. Matos, J.), entered December 22, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider of medical supplies 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 that the affidavit by plaintiff’s corporate officer was insufficient to establish personal knowledge of the facts set forth therein because the corporate officer did not demonstrate that he possessed sufficient personal knowledge of plaintiff’s office practices and procedures to lay a proper foundation to establish that the documents submitted by plaintiff were admissible pursuant to the business records exception to the hearsay rule (see CPLR 4518). The court denied plaintiff’s motion for summary judgment, holding that plaintiff did not make a prima facie showing, and this appeal 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 [*2]
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]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: February 6, 2007

[*1]

Supreme Court, Appellate Term, Second Department, February 6, 2007

APPEARANCES OF COUNSEL

Cambio, Votto, Cassata, & Gullo, LLP, Staten Island (Michelle S. Titone of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

{**15 Misc 3d at 14} OPINION OF THE COURT

Memorandum.

Order reversed without costs, defendant’s motion for summary judgment granted and complaint dismissed.

In this action to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to attend duly scheduled independent medical examinations (IMEs). Plaintiff opposed the motion, arguing, inter alia, that defendant failed to adequately prove mailing of the IME requests. Although the court below found that defendant offered sufficient proof of having mailed timely IME requests and follow-up requests, it denied defendant’s motion on the ground that there was an issue of fact as to the reason for plaintiff’s assignor’s nonappearances. This appeal by defendant ensued.

In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720, 722 [2d Dept 2006]), the Appellate Division held that “[t]he appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy,” and that the mandatory personal injury protection endorsement (11 NYCRR 65-1.1) requires the “eligible injured person . . . [to] submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require.”

Defendant contends that it was entitled to summary judgment dismissing the action [*2]because the affidavits which it submitted in support of its motion established that it sent a timely IME request and follow-up request to plaintiff’s assignor, and that plaintiff’s assignor failed to appear for the IMEs. Plaintiff argues that defendant was not entitled to summary judgment because, among other things, the affidavits submitted by defendant were insufficient to demonstrate timely mailing of said IME requests.

Contrary to plaintiff’s contentions, the affidavits submitted by defendant were sufficient to establish that defendant’s requests and follow-up requests for IMEs were mailed in accordance with the time periods prescribed by the insurance regulations (11 NYCRR 65-3.5 [b]; 65-3.6 [b]). Since plaintiff raised no issue as to the sufficiency of defendant’s proof of plaintiff’s assignor’s{**15 Misc 3d at 15} nonappearance at the IMEs, we do not pass on the propriety of the motion court’s determination with respect thereto. To the extent that the court below concluded that there was a question of fact regarding the reason for plaintiff’s assignor’s nonappearance at the IMEs, we note that there is no support in the record for such finding. Accordingly, defendant was entitled to summary judgment dismissing the complaint.

Rudolph, P.J., McCabe and Tanenbaum, 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 January 6, 2006. The order granted defendant’s motion to sever five causes of action.

Order affirmed without costs.

Plaintiff medical supply company commenced this action to recover the sum of $4,880 in first-party no-fault benefits, as assignee of five individuals who were injured in five separate motor vehicle accidents. Defendant insurance company moved for severance of the causes of action, arguing that there were five separate and distinct
claims involving different questions of fact and law. Plaintiff maintained that all of the claims were denied for the same reason, lack of medical necessity, and that four of the five claims sought payment for the same type of medical equipment. The court below granted defendant’s motion for severance and directed plaintiff to purchase four additional index numbers.

The decision to grant a severance (see CPLR 603) is an exercise in judicial discretion, which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see Mothersil v Town Sports Intl., 24 AD3d 424, 425 [2005]; Anderson v Singh, 305 AD2d 620 [2003]). In the instant matter, denial of the claims was based on five different peer reviews, which could result in testimony at trial from five different doctors on the issue of medical necessity. “[T]he particular facts herein relating to each claim are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical” (S.I.A. Med. Supply, Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U] [App Term, 2d & 11th Jud Dists]). A single trial involving different sets of facts regarding the [*2]underlying accidents, injuries and nature and cost of supplies has a danger of being unwieldy and confusing. Accordingly, the order granting severance is affirmed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: February 5, 2007