A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp.

[*1] A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp. 2004 NY Slip Op 50779(U) Decided on July 8, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 8, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2003-1068 K C

A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. a/a/o YELIZAVETA TSIMERING and VICTOR TSIMERING, Appellants,

against

TRAVELERS PROPERTY CASUALTY CORPORATION, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (D. Silber, J.), entered April 22, 2003, denying their motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiffs commenced this action to recover first-party no-fault benefits, as well as statutory interest and attorney's fees, for medical services rendered to their assignors for injuries they sustained in an automobile accident, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved for summary judgment, which motion the court below denied, by order entered April 22, 2003, "without prejudice to renewal upon completion of discovery."

In support of their motion, plaintiffs submitted an affidavit in which one Bella Safir stated that she was the "practice and billing manager" of "plaintiff," even though there were two distinct plaintiffs in this matter, A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. The affidavit did not indicate for which "plaintiff" Safir was the billing manager and this court cannot assume that she was acting on behalf of one particular plaintiff or on behalf of both plaintiffs. Consequently, the affidavit is insufficient to establish that plaintiffs provided defendant with properly completed forms(see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Apr. 13, 2004 [App Term, 9th & 10th Jud Dists]). Accordingly, plaintiffs failed to make a prima [*2]facie showing of entitlement to judgment as a matter of law (cf. Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]).

In view of the foregoing, we find that their motion was properly denied, albeit on grounds other than those relied upon by the court below.
Decision Date: July 08, 2004