Boston Post Rd. Med. Imaging, P.C. v Progressive Ins. Co.

[*1] Boston Post Rd. Med. Imaging, P.C. v Progressive Ins. Co. 2007 NY Slip Op 51173(U) [15 Misc 3d 145(A)] Decided on June 7, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-1084 N C.

Boston Post Road Medical Imaging, P.C. a/a/o Adrian Black, Appellant,

against

Progressive Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Sharon M.J. Gianelli, J.), dated April 5, 2006. The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, reversed without costs and defendant's cross motion for summary judgment dismissing the complaint denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment
on the grounds, inter alia, that plaintiff was ineligible for reimbursement of no-fault benefits, citing State Farm Mut. Auto. Ins. Co. v Mallella (4 NY3d 313 [2005]), and that plaintiff lacked standing to sue because it sold its right to collect upon the bills at issue. The court denied plaintiff's motion for summary judgment and granted defendant's cross motion, holding that defendant proffered "sufficient evidence that plaintiff is not wholly owned by licensed health care providers as required by Business Corporations [sic] Law § 1503 (b) and § 1507." Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant's cross motion for summary judgment.

In support of its cross motion, defendant submitted an unverified complaint and exhibits annexed thereto filed by, among others, plaintiff in an action it commenced in the Supreme [*2]Court, Kings County wherein plaintiff alleged that it entered into a contract to sell accounts receivable. In further support of its cross motion, defendant proffered an affidavit submitted in the Supreme Court action in which the affiant swore that plaintiff agreed to sell its accounts receivable. However, these documents are not dispositive of this action since they constitute informal judicial admissions which are "evidence of the fact or facts admitted . . . the circumstances of which may be explained at trial" (Baje Realty Corp. v Cutler, 32 AD3d 307, 310 [2006] [citations and internal
quotation marks omitted]; see also Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996]). Upon this motion, the record does not establish that plaintiff sold the right to recover upon the claims which are at issue in this action.

To the extent defendant asserts that plaintiff is ineligible for reimbursement of no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, supra), the record does not, at this juncture, support such a determination. Indeed, the unsigned transcript of the testimony given by plaintiff's principal at an examination under oath in connection with a claim made by a different medical corporation owned by said principal was insufficient to establish, as a matter of law, that plaintiff is owned or controlled by someone other than a licensed medical professional. Similarly, while defendant alleges that plaintiff has channeled the bulk of its profits to a management company and to companies from which it leases its premises and its medical equipment, all of which are related entities, the record lacks sufficient facts to establish the extent to which plaintiff's profits are being shared. Accordingly, upon this record, it cannot be said, as a matter of law, that plaintiff is ineligible for reimbursement of no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, supra). Therefore, defendant's cross motion for summary judgment dismissing the action should have been denied since questions of fact exist as to whether plaintiff is eligible for reimbursement of no-fault
benefits and, if so, whether plaintiff sold the accounts which were the subject of this action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 7, 2007