Psychology YM, P.C. v Nationwide Mut. Ins. Co.

[*1] Psychology YM, P.C. v Nationwide Mut. Ins. Co. 2009 NY Slip Op 51634(U) [24 Misc 3d 140(A)] Decided on July 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 24, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-1515 K C.

Psychology YM, P.C. a/a/o DEWAR MALDA, Respondent,

against

Nationwide Mutual Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered April 4, 2007, deemed from a judgment of the same court entered June 20, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 4, 2007 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $578.90.

Judgment reversed without costs, order granting plaintiff's motion for summary judgment vacated and plaintiff's motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff's motion for summary judgment. The appeal is deemed to be from the judgment that was subsequently entered pursuant to the order (see CPLR 5501 [c]).

Since plaintiff's motion for summary judgment was supported by an affidavit of an employee of a third-party billing company which failed to comply with CPLR 4518, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists, 2007], affd 55 AD3d 644 [2008]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., ___ Misc 3d ___, 2009 NY Slip Op 29155 [App Term, 2d, 11th & 13th Jud Dists 2009]; Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff's motion for summary judgment should have been denied.

In light of the foregoing, we reach no other issue.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 24, 2009