NYC East-West Acupuncture, P.C. v Maryland Cas. Co.

[*1] NYC East-West Acupuncture, P.c. v Maryland Cas. Co. 2008 NY Slip Op 51762(U) [20 Misc 3d 143(A)] Decided on August 19, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 19, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-337 Q C.

NYC East-West Acupuncture, P.C. as assignee of AH KOW LOCK, Respondent,

against

Maryland Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated December 1, 2006, deemed from a judgment of said court entered January 24, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 1, 2006 order granting plaintiff's motion for summary judgment on its first through sixth, thirteenth, fourteenth, nineteenth and twentieth causes of action and denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $6,507.84.

Judgment reversed without costs, so much of the order entered December 1, 2006 as granted plaintiff's motion for summary judgment on its first, second, fifth, sixth, thirteenth, fourteenth, nineteenth and twentieth causes of action vacated, plaintiff's motion for summary judgment on its first, second, fifth, sixth, thirteenth, fourteenth, nineteenth and twentieth causes of action denied, defendant's cross motion for summary judgment granted to the extent of dismissing plaintiff's fifth through twenty-fourth causes of action, and matter remanded to the court below for the calculation of statutory interest and attorney's fees on plaintiff's third and fourth causes of action and for all further proceedings with respect to [*2]plaintiff's first and second causes of action.
In this action by a provider to recover assigned first-party no-fault benefits for services rendered to its assignor, plaintiff moved for summary judgment on its first through sixth, thirteenth, fourteenth, nineteenth and twentieth causes of action. The motion was supported by affidavits of an account representative supervisor and an office services supervisor, both employed by plaintiff's counsel, an affidavit of a corporate officer of plaintiff, and various documents annexed thereto. Defendant opposed the motion, contending that plaintiff did not make a prima facie showing of entitlement to summary judgment because plaintiff's motion was not supported by an affidavit from a person with knowledge of the facts, setting forth all the material facts (CPLR 3212 [b]). Defendant also cross-moved for summary judgment dismissing the complaint, arguing that it had properly and timely denied plaintiff's claims on the ground of lack of medical necessity based upon an independent medical examination (IME) performed by a licensed acupuncturist. Defendant's cross motion was supported by an affidavit of its no-fault specialist, which apparently was executed in Connecticut, and by an affirmed IME report. Plaintiff did not oppose defendant's cross motion. The court below granted plaintiff's motion for partial summary judgment, finding that plaintiff had established a prima facie case, and denied defendant's cross motion based upon defendant's failure to annex a certificate of conformity pursuant to CPLR 2309 (c). The court also found, with respect to the first and second causes of action, that defendant's affidavit, in which the no-fault specialist stated that defendant had failed to receive the claim form which was the subject of those causes of action, did not rebut the presumption of receipt which flowed from plaintiff's proof of mailing. This appeal by defendant ensued.
On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to the moving papers. We agree. Inasmuch as the affidavits submitted by plaintiff in support of its motion were insufficient to establish that the individual affiants possessed personal knowledge of plaintiff's office 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 showing of its entitlement to partial summary judgment (see Dan Med., P.C. v New York Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).
With respect to defendant's cross motion for summary judgment, although the affidavit of defendant's no-fault specialist was notarized by a Connecticut notary public and was not accompanied by a certificate of conformity in accordance with CPLR 2309 (c) and Real Property Law § 299-a (1), the court should have disregarded such defect in form since plaintiff did not object to the omission (see NY Comprehensive Med., P.C. v Maryland Cas. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50521[U] [App Term, 2d & 11th Jud Dists 2008]). Any other objections with respect to alleged defects in the form of defendant's affidavit were not raised by plaintiff in the court below and were therefore waived (CPLR 2101 [f]).
Notwithstanding the foregoing, since defendant, on its cross motion for summary judgment, conceded that defendant had received the claim for $1,190, which is the subject of plaintiff's third and fourth causes of action, and acknowledged that payment was due, that portion [*3]of the order which granted plaintiff summary judgment upon its third and fourth causes of action should not be disturbed.
With respect to plaintiff's claim for $1,360, which is the subject of plaintiff's first and second causes of action, defendant is not entitled to summary judgment thereon since it failed to establish as a matter of law that these causes of action are premature.
However, as to the claims underlying plaintiff's fifth through twenty-fourth causes of action, we find that defendant, through the submission of the affidavit of its no-fault specialist and the affirmed IME report, established a prima facie case that plaintiff's claims were properly and timely denied based upon a lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff did not oppose defendant's cross motion, defendant's prima facie case was unrebutted, thereby entitling defendant to summary judgment dismissing plaintiff's fifth through twenty-fourth causes of action (see A Khodadadi Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: August 19, 2008