First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co.

[*1] First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co. 2005 NY Slip Op 51815(U) [9 Misc 3d 1127(A)] Decided on November 9, 2005 Civil Court Of The City Of New York, Kings County Bluth, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2005
Civil Court of the City of New York, Kings County

First Help Acupuncture, P.C. a/a/o Zach Glot, Plaintiff,

against

Lumbermens Mutual Insurance Company, Defendant.



33857/04

Arlene P. Bluth, J.

Upon the foregoing cited papers and after oral argument, plaintiff moves for summary judgment pursuant to CPLR § 3212. For the following reasons, plaintiff's motion is denied. [*2]

In this action, plaintiff First Help Acupuncture, P.C. seeks to recover first-party No-Fault benefits in the amount of $3,000.00, plus statutory, interest, costs, and attorneys' fees, for healthcare services allegedly rendered to its assignor, Zach Glot. Plaintiff argues that defendant failed to timely deny its No-Fault claims. However, because of deficiencies in its supporting affidavit, plaintiff fails to put admissible evidence before this Court sufficient to make out its prima facie case.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 [1986]. The motion must be supported by an affidavit from a person with knowledge of the facts, setting forth all material facts. See CPLR § 3212(b). If the moving party fails to make such a showing, the motion must be denied, irrespective of the sufficiency of the opposing papers. See De Santis v Romeo, 177 AD2d 616, 576 NYS2d 323 [2nd Dept 1991]. If, however, the moving party sustains its burden, the opposing party must submit evidence of a triable issue of fact in order to defeat the motion. See Rebecchi v. Whitmore, 172 AD2d 600, 568 NYSd 423 [2nd Dept 1991].

In the No-fault context, a healthcare provider establishes prima facie entitlement to summary judgment as a matter of law by submitting proof in admissible form demonstrating that the prescribed statutory claim form, setting forth the fact and amount of the loss sustained, was submitted to the defendant, and that payment of no-fault benefits is overdue. See NYCRR § 65-3.8(c); Careplus Med. Supply, Inc. v Allstate Ins. Co., 9 Misc 3d 128(A), 2005 NY Slip Op 51525(U), [App Term, 2nd & 11th Jud Dists]; Contemp. Med. Diag. & Treatment, P.C. v. GEICO, 6 Misc 3d 137(A), 800 NYS2d 344 [App Term, 2d and 11th Jud Dists 2005]. If and only if the plaintiff makes out its prima facie case, the burden shifts to the defendant to raise a triable issue of fact.

In support of this motion, plaintiff submits the affirmation of its attorney and an affidavit from an employee of plaintiff. Also annexed to the motion are various bills and an assignment of benefits for the assignor, and two NF-10 denial forms. These documents are critical to plaintiff's prima facie case: First, plaintiff needs to submit its completed proof of claims that it alleges have not been paid or timely denied. See Amstel Chiropractic, P.C. v. Omni Indem. Co., 2 Misc 3d 129(A), 784 NYS2d 918 [App Term, 2d and 11th Jud Dists 2004]; Triboro Chiropractic and Acupuncture P.L.L.C. ex rel. Tacopino v. Electric Ins. Co., 2 Misc 3d 135(A), 784 NYS2d 924 [App Term, 2d & 11th Jud Dists 2004]. Second, plaintiff must establish that it actually mailed its claims to defendant. Absent direct proof of mailing, defendant's denials once properly before the Court are an admission by the insurer that it received the bills, and thus are proof that the bills were mailed. See A.B. Med. Servs. P.L.L.C. v. New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136(A), 787 NYS2d 675 [App Term, 2nd & 11th Jud Dists 2004]; Willis Acupuncture, P.C. v. GEICO, 6 Misc 3d 1002(A), 800 NYS2d {6 Misc 3d 1002(A)} 359 [Civ Ct, Kings County 2004].

In order for plaintiff's exhibits to be considered by this Court, the supporting affidavit must lay a proper foundation for their admissibility. "Foundation requirements to qualify a document as a business record fully apply on a motion for summary judgment." A.B. Med. Servs., P.L.L.C. et al. v Travelers Prop. Cas. Corp., 5 Misc 3d 214, 215, 783 NYS2d 244, 246 [Civ Ct, Kings County 2004]. Plaintiff's bills are a type of medical office records, and "[m]edical office records are admissible under the business records exception to the hearsay rule, provided a proper foundation is laid for their admissibility." Faust v McPherson, 4 Misc 3d 89, 91, 783 NYS2d 197, 199 [App Term, 2nd & 11th Jud Dists 2004]. See also Hefte v Bellin, 137 AD2d 406, 524 NYS2d 42 [1st Dept 1988].

A business record is admissible upon proof that (1) it was made in the regular course of business; (2) it was in the regular course of such business to make the record; and (3) the record was made at the time of or shortly after the subject event or transaction. See CPLR § 4518(a); People v. DiSalvo, 284 AD2d 547, 727 NYS2d 146 [2nd Dept 2001]. Only a qualified individual can lay the necessary foundation. See Carrion v McNally & McNally, Inc., 18 AD3d 312, 794 NYS2d 339 [1st Dept 2005]; West Valley Fire District No. 1 v Village of Springville, 294 AD2d 949, 743 NYS2d 215 [4th Dept 2002]; People v DiSalvo, 284 AD2d at 548; Hefte, 137 AD2d at 408. "While it is not necessary that the foundation witness have made the records, or even that he or she be familiar with the particular records in question, it must be shown that the witness has had some familiarity with the doctor's business practices and procedures." Faust, 4 Misc 3d at 91. See also Careplus Med. Supply, Inc. v Allstate Ins. Co., 9 Misc 3d 128(A), 2005 NY Slip Op 50525(U) [App Term, 2nd & 11th Jud Dists] (holding that the affidavit of plaintiff's officer and [*3]billing manager sufficiently "sufficiently set forth his duties so as to support the conclusion that the attached exhibits were sufficiently accurate and trustworthy" to be admitted as business records).

In support of the motion, plaintiff presents the affidavit of Andrey Anikeyev. Although the last paragraph of the affidavit recites that the records were made in the regular course of business at the time the services were rendered, and that it is and was plaintiff's regular course of business to make such records and submit them to the insurer for payment, Mr. Anikeyev does not describe his familiarity with plaintiff's record-keeping practices and procedures, or explain his role, if any, in the rendering and mailing of bills and the processing of insurance company payments and denials. He does not even provide his job description or actual job title. Mr. Anikeyev simply writes that he is "an employee of Plaintiff." That is patently insufficient to establish his competency to lay a foundation for the admission of plaintiff's bills as business records.[FN1] For all this Court knows, Mr. Anikeyev could be a security guard in plaintiff's employ.

A court cannot be expected to assume, trust, or infer from an affidavit that the affiant is qualified to lay a foundation for annexed exhibits. The conclusory statement "I have personal knowledge" is not enough particularly where, as here, the affiant is not an individual litigant (i.e., a party to the lawsuit) but an undenominated employee of a party. The witness or affiant must disclose not only what he knows but also the source of his knowledge. See Carrion v McNally & McNally, Inc., 18 AD2d 312, 794 NYS2d 339 [1st Dept 2005]; A.B. Med. Servs., P.L.L.C., et al. v Travelers Prop. Cas. Corp., 6 Misc 3d 53, 791 NYS2d 264 [App Term, 2nd & 11th Jud Dists 2004]; Ocean Diag. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 141(A), 798 NYS2d 346 [App Term, 9th & 10th Jud Dists 2004]. The affidavit submitted by plaintiff falls short of what is required.

Nor is the affirmation of plaintiff's counsel to any avail. It is axiomatic that the affirmation of a party's attorney "who lacks personal knowledge of the essential facts, is of no probative value and is insufficient to support an award of summary judgment . . . ." Peters v. City of New York, 5 Misc 3d 1020(A), 799 NYS2d 163 [Sup Ct, Kings County 2004]. See also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]; Lupinsky v. Windham Constr. Corp., 293 AD2d 317, 739 NYS2d 717 [1st Dept 2002]; Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc 3d 133(A), 787 NYS2d 675 [App Term, 2nd and 11th Jud Dists 2004]. Plaintiff's attorney has not claimed any personal knowledge regarding the rendering or mailing of the plaintiff's bills and the receipt of the denials. Moreover, while an attorney's affirmation may serve as a vehicle for introducing documents which themselves are in admissible form, such as deposition transcripts (see Zuckerman, 49 NY2d at 563), those are not the circumstances here.

For the foregoing reasons, plaintiff has failed to make out its prima facie case. Therefore, plaintiff is not entitled to summary judgment and the Court need not reach the sufficiency of defendant's opposition.

Accordingly, plaintiff's motion is denied.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court

[*4]ASN by__________ on __________ Footnotes

Footnote 1: Although the Court need not reach the issue of whether plaintiff has laid a proper foundation to admit defendant's denials, the Court notes that Mr. Anikeyev cannot possibly be said to have laid a foundation for their admission since his affidavit makes no reference to them. Instead, it merely states: "Defendant failed to issue timely denials and/or timely verification requests."