RLC Med., P.C. v Allstate Ins. Co.

[*1] RLC Med., P.C. v Allstate Ins. Co. 2009 NY Slip Op 51131(U) [23 Misc 3d 145(A)] Decided on June 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and MOLIA, JJ
2008-1443 N C.

RLC Medical, P.C. a/a/o DENISE DeANGELIS, Appellant,

against

Allstate Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Bonnie P. Chaikin, J.), entered June 4, 2008. 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, defendant served plaintiff with various discovery demands. Thereafter, plaintiff moved
for summary judgment. In opposition to the motion, defendant argued that plaintiff did not make a prima facie showing of its entitlement to judgment as a matter of law. In addition, defendant asserted that plaintiff's motion should be denied because plaintiff's owner failed to appear for examinations under oath (EUOs) and because plaintiff failed to respond to defendant's discovery demands, which sought information as to whether plaintiff was a fraudulently incorporated medical provider, and, thus, ineligible for reimbursement of no-fault benefits. The District Court denied plaintiff's motion, holding that the affidavit by plaintiff's billing manager failed to establish a prima facie case because it did not demonstrate that the documents annexed to plaintiff's motion were admissible as business records. This appeal by plaintiff ensued.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff's billing manager failed to establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff's motion for summary judgment was properly denied.

We reach no other issue.

In light of the foregoing, the order is affirmed. [*2]

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: June 02, 2009