Careplus Med. Supply, Inc. v Travelers Indem. Co.

[*1] Careplus Med. Supply, Inc. v Travelers Indem. Co. 2009 NY Slip Op 51386(U) [24 Misc 3d 133(A)] Decided on June 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: MOLIA, J.P., SCHEINKMAN and LaCAVA, JJ
2008-1446 N C.

Careplus Medical Supply, Inc. a/a/o JOSE BRAVO, Appellant,

against

Travelers Indemnity Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Gary F. Knobel, J.), entered June 9, 2008. The order, insofar as appealed from, denied so much of plaintiff's motion as sought summary judgment upon its bill dated April 30, 2003.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that plaintiff did not make a prima facie showing of its entitlement to judgment as a matter of law. Defendant also cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the District Court denied so much of plaintiff's motion as sought summary judgment on its bill dated April 30, 2003, on the ground that plaintiff's assignor failed to appear for scheduled independent medical examinations (IMEs).

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff's medical biller 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, albeit on other grounds.

In light of the foregoing, the order, insofar as appealed from, is affirmed.
The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Molia, J.P., and LaCava, J., concur. [*2]

Scheinkman, J., taking no part.
Decision Date: June 29, 2009