R.M. Med. P.C. v Lumbermens Mut. Cas. Co.
Annotate this CaseDecided on June 3, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and BELEN, JJ.
2004-118 K C
R.M. Medical P.C. SALOMONE CHIROPRACTIC P.A. a/a/o Roseann Rodriguez, Appellants,
against
Lumbermens Mutual Casualty Company, Respondent.
Appeal by plaintiffs from an order of the Civil Court, Kings County (P. Sweeney, J.), entered on November 28, 2003, which denied a motion for summary judgment by "plaintiff."
Order unanimously affirmed without costs.
In this action to recover assigned first-party no-fault benefits, commenced by plaintiffs R.M. Medical P.C. and Salomone Chiropractic P.A., "plaintiff" moved for summary judgment in the sum of $2,832.14 for medical services rendered to the assignor. In support of the motion, an affidavit was submitted in which Alex Vishnevskiy stated that he was the "practice and medical billing manager" of "plaintiff," even though there are two distinct plaintiffs in this action. The affidavit did not indicate for which "plaintiff" Vishnevskiy was the billing manager and this court cannot assume that he was acting on behalf of one particular plaintiff or on behalf of both plaintiffs. Consequently, the affidavit is insufficient to establish that defendant was provided with properly completed forms (see A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp., 4 Misc 3d 135[A], 2004 NY Slip Op 50779[U] [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiffs failed to make a prima facie showing of entitlement to judgment as a matter of law.
In view of the foregoing, the motion was properly denied, albeit on grounds other than those relied upon by the court below.
Decision Date: June 03, 2005
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