Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford

[*1] Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford 2010 NY Slip Op 50889(U) [27 Misc 3d 138(A)] Decided on May 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-995 K C.

Balance Chiropractic, P.C. a/a/o CIRILO ACOSTA and DIONICIO MUNOZ, Appellant,

against

Property and Casualty Ins. Co. of Hartford, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered April 23, 2009. The order denied plaintiff's motion for leave to enter a default judgment.

ORDERED that the order is modified by providing that plaintiff's motion is denied with leave to renew upon proper papers; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for leave to enter a default judgment based upon defendant's failure to appear or answer the complaint or, in the alternative, for an order finding for all purposes in the action that plaintiff had established a prima facie case. The motion was unopposed. The Civil Court denied the motion, and this appeal by plaintiff ensued.

In support of its motion, plaintiff proffered neither an affidavit nor a verified complaint by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted a complaint verified by counsel, who did not demonstrate personal knowledge of the facts, and an affidavit of the president of a third-party billing company, which affidavit did not establish that the documents annexed to plaintiff's motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers [*2]Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Andrew Carothers, M.D., P.C. v Geico Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Since plaintiff's motion papers did not demonstrate a prima facie entitlement to judgment as a matter of law, the Civil Court properly denied the motion (see All Mental Care Medicine, P.C. v Allstate Ins. Co., 15 Misc 3d 129[A], 2007 NY Slip Op 50612[U] [App Term, 2d & 11th Jud Dists 2007]). Furthermore, plaintiff is not entitled to the alternative relief it sought, a finding for all purposes in the action that it had established its prima facie case (see e.g. B.Y., M.D., P.C. v Government Empls. Ins. Co., 26 Misc 3d 95 [App Term, 9th & 10th Jud Dists 2010]). However, in the circumstances presented, we modify the order to provide that plaintiff's motion is denied with leave to renew upon proper papers.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 13, 2010