Mount Sinai Hosp. v Dust Tr. Inc.

[*1] Mount Sinai Hosp. v Dust Tr. Inc. 2011 NY Slip Op 52548(U) Decided on September 27, 2011 Supreme Court, Nassau County DeStefano, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2011
Supreme Court, Nassau County

Mount Sinai Hospital, a/a/o ALISON CASSANI, Plaintiff,

against

Dust Transit Inc., Defendant.



010715-10



Plaintiff Attorney:

Joseph Henig, P.C.

1598 Bellmore Avenue

Bellmore, NY 11710

Defendant Attorney:

Gerber & Gerber

David Weintraub, Esq.

26 Court Street, Suite 1405

Brooklyn, NY 11242

Vito M. DeStefano, J.

Plaintiff's motion, pursuant to CPLR 2221, for leave to reargue a prior motion for summary judgment which was denied by the court in an order dated November 17, 2010, is granted. Upon reargument, it is further ordered that the Plaintiff's motion for summary judgment is granted. [*2]

The Plaintiff argues that it fully complied with the verification requests made by the Defendant and that the complete medical records were submitted along with the Form 5 hospital bill. Notably, while the Defendant alleged in its opposition to the underlying motion that it had not received a response to verification requests,[FN1] purportedly because these items were sent to the Defendant itself rather than Gerber & Gerber, PLLC [FN2] (defense counsel who had made the requests), the Defendant indicates in opposition to the instant motion that counsel did receive the medical and hospital records on April 8, 2010 but the Plaintiff "failed to attach this proof of mailing to their original motion papers" (Affirmation in Opposition at ¶ 12). It is significant to note that while the hospital and medical records were received by defense counsel almost two months prior to Plaintiff's service of the underlying motion for summary judgment, the fact that defense counsel had received such records was not disclosed to the court until the submission of Defendant's opposition to the instant motion.

Moreover, Farida Shabat, the no-fault claims manager with Gerber & Gerber, PLLC, stated in her affidavit in the underlying motion as follows:

As of date [August 31, 2010], Plaintiff has failed to provide defendant with the requested verification, specifically an itemized bill tabulated per the New York Worker's Compensation Medical Fee Schedule with CPT codes, medical records with the original doctor's signature verifying causal relationship to the Motor Vehicle Accident and the hospital records with original doctor's signature, which are necessary to determine whether to pay or deny the bills.

(Shabat Affidavit in Opposition to Underlying Motion at ¶ 10). However, as mentioned, defense counsel states in her opposition to the instant motion that it did receive the medical and hospital records on April 8, 2010 and, thus, contrary to what was stated in the affidavit, defense counsel did, in fact, have possession of the medical and hospital records prior to the date the affidavit was signed.

In addition to acknowledging receipt of the hospital and medical records, the Defendant indicates that the "missing requested information" was provided to the Defendant "for the first time" in Plaintiff's Exhibit 4 to its motion to reargue. However, a review of the documents provided in Plaintiff's Exhibit 4 demonstrate that the documents therein were previously [*3]submitted in support of Plaintiff's motion for summary judgment.

Accordingly, the Plaintiff's motion to reargue is granted and, upon reargument, summary judgment is granted in favor of the Plaintiff.

This constitutes the decision and order of the court.

DATE: September 27, 2011

__________________________________

Hon. Vito M. DeStefano, J.S.C. Footnotes

Footnote 1: The verification requests purportedly outstanding as of the date that Defendant opposed the motion were "an itemized bill tabulated per the New York Worker's Compensation Manual Fee Schedule with CPT codes, medical records with the original doctor's signature verifying causal relationship to the Motor Vehicle Accident and the hospital records with original doctor's signature which are necessary to determine whether to pay or deny the subject bills" (Affirmation in Opposition to Summary Judgment Motion at ¶ 7).

Footnote 2: Gerber & Gerber, PLLC is a "law firm representing self-insured cab companies which are responsible to pay for their own claims. Gerber & Gerber, PLLC receives and reviews no-fault claims submitted to the various self-insured cab companies that are clients of Gerber & Gerber, PLLC" (Shabat Affidavit in Opposition to Underlying Motion at ¶ 2).