Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co.

[*1] Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. 2007 NY Slip Op 52453(U) [18 Misc 3d 128(A)] Decided on December 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 27, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1568 K C.

Delta Diagnostic Radiology, P.C. a/a/o Leaford Reid, Appellant,

against

Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered June 15, 2006. The order, insofar as appealed from, denied plaintiff's motion for summary judgment.

Order modified by providing that plaintiff's motion for summary judgment is granted to the extent of awarding plaintiff summary judgment upon that portion of its cause of action which sought to recover statutory interest and attorney's fees on its $879.73 claim, and matter remanded to the court below for the calculation of statutory interest and attorney's fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed insofar as appealed from, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff's motion for summary judgment was supported by an affirmation from plaintiff's counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff's corporate officer stated in a conclusory manner that the documents attached to plaintiff's motion papers were plaintiff's business records. In opposition, defendant argued, inter alia, that plaintiff's moving papers did not proffer facts in admissible form so as to establish plaintiff's prima facie entitlement to judgment as a matter of law. The court denied plaintiff's motion, finding that defendant timely denied plaintiff's claims and that there was an [*2]issue of fact as to whether the services rendered were medically necessary. The instant appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff's corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff's practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff's moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). However, defendant's litigation representative conceded receipt of plaintiff's claim for $879.73
and that the denial of this claim was not issued within the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]). The litigation representative further stated that, as a result, defendant thereafter paid the claim in its entirety as well as what it believed to be the accrued interest. Plaintiff correctly asserts that it was entitled to summary judgment awarding it statutory interest and attorney's fees in light of defendant's admissions and the fact that the payment was made after this action was commenced (see St. Clare's Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]; Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338 [1994]; East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104, 105-106 [App Term, 2d & 11th Jud Dists 2007]; see also Insurance Department Regulations [11 NYCRR] § 65-4.6 [e]; 2003 Ops Ins Dept No. 03-02-31 [www.ins.state.ny.us/ogco2003/rg030231.htm]).

Consequently, plaintiff's motion for summary judgment is granted to the extent of awarding it summary judgment upon that portion of its cause of action seeking statutory interest and attorney's fees on its claim for $879.73, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney's
fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: December 27, 2007