A.B. Med. Servs., PLLC v American Tr. Ins. Co.

[*1] A.B. Med. Servs., PLLC v American Tr. Ins. Co. 2009 NY Slip Op 52067(U) [25 Misc 3d 128(A)] Decided on October 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 6, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., NICOLAI and TANENBAUM, JJ
2008-1854 N C.

A.B. Medical Services, PLLC, D.A.V. CHIROPRACTIC, P.C. and LVOV ACUPUNCTURE, P.C. a/a/o JOEL MICHEL, Appellants,

against

American Transit Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered August 11, 2008. The order denied plaintiffs' motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed plaintiffs' motion and cross-moved for summary judgment on the ground that plaintiffs' assignor failed to appear for scheduled examinations under oath (EUOs). The District Court denied plaintiffs' motion for summary judgment and granted defendant's cross motion.

On appeal, plaintiffs argue that they made a prima facie showing of their entitlement to summary judgment, and that defendant was not entitled to summary judgment because, among other things, defendant failed to prove that it mailed the EUO notices. We disagree.

Contrary to plaintiffs' contention, defendant established both that the EUO notices were mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]) and that the assignor failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, in light of the foregoing and the fact that plaintiffs' further [*2]contentions that the EUO notices were defective and that an EUO was not necessary lack merit, defendant's cross motion for summary judgment was properly granted (W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Even were we to find otherwise, plaintiffs' motion for summary judgment was properly denied because plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs' billing manager failed to establish that the documents annexed to plaintiffs' moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; 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]).

Molia, J.P., Nicolai and Tanenbaum, JJ., concur.
Decision Date: October 06, 2009