St. Vincent Med. Care, P.C. v Mercury Cas. Co.

[*1] St. Vincent Med. Care, P.C. v Mercury Cas. Co. 2009 NY Slip Op 50810(U) [23 Misc 3d 135(A)] Decided on April 24, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 24, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2008-459 Q C.

St. Vincent Medical Care, P.C. as assignee of MARION LEWIS, Respondent,

against

Mercury Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 29, 2008. The order, insofar as appealed from as limited by the brief, denied defendant's motion for partial summary judgment dismissing plaintiff's first, second, third, fifth, sixth and seventh causes of action.

Order, insofar as appealed from, reversed without costs and defendant's motion for partial summary judgment dismissing plaintiff's first, second, third, fifth, sixth and seventh causes of action granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for partial summary judgment dismissing plaintiff's first, second, third, fifth, sixth and seventh causes of action. Plaintiff opposed the motion. The Civil Court's order, insofar as appealed from, denied defendant's motion for partial summary judgment, finding that plaintiff's doctor's affirmation raised a triable issue of fact.

The affidavit of defendant's claim representative set forth the affiant's personal knowledge of defendant's business practices and procedures, so as to lay a foundation for the admission of the documents annexed to the affidavit as business records (see CPLR 4518; Dan Med., P.C. v New York Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2007]). Said affidavit also established the timely mailing of defendant's NF-10 denial of claim forms since it described defendant's standard office practices and procedures designed to ensure that the denials were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The denial of claim forms state that the subject claims were denied on the ground of lack of medical necessity for the services rendered based on either the [*2]affirmed independent medical examination report, or the affirmed peer review reports. These reports, which were annexed as exhibits to defendant's motion, established that the services rendered were not medically necessary (see Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A] 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, contrary to plaintiff's contention on appeal, defendant demonstrated its prima facie entitlement to partial summary judgment dismissing plaintiff's first, second, third, fifth, sixth and seventh causes of action.

In opposition, plaintiff submitted an affirmation executed by its principal, Dr. Zakharov. Defendant objected to said affirmation in its reply papers, citing CPLR 2106. The submission of Dr. Zakharov's affirmation was improper because he is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A] 2006 NY Slip Op 51055[U] [App Term 2d & 11th Jud Dists 2006]; see also Pisacreta v Minniti, 265 AD2d 540 [1999]). Since the Civil Court should not have considered any facts set forth, or exhibits referred to, in said affirmation (see Pisacreta, 265 AD2d 540), plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Plaintiff's remaining contentions lack merit.

Accordingly, the order, insofar as appealed from, is reversed, and defendant's motion for partial summary judgment dismissing plaintiff's first, second, third, fifth, sixth and seventh causes of action is granted.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 24, 2009