Opinion
2008-1168 N C.
Decided March 19, 2009.
Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), dated March 27, 2008. The order denied plaintiffs' motion for summary judgment.
Order modified by providing that plaintiffs' motion is granted insofar as it seeks summary judgment upon the claims submitted by Gentle Care Acupuncture, P.C. seeking to recover the sums of $1,045, $1,500, $1,375, $1,090, $350.56 and $250, and the claims submitted by Craigg Total Health Family Chiropractic Care, P.C. seeking to recover the sums of $88.44, $370.70, $404.40, $235.90, $269.60 and $67.40, and matter remanded to the District Court for the calculation of statutory interest and attorney's fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.
PRESENT: TANENBAUM, J.P., MOLIA and LaCAVA, JJ.
In this action by providers to recover assigned first-party no-fault benefits, defendant served plaintiffs with various discovery demands. Thereafter, plaintiffs moved for summary judgment. In opposition, defendant argued that plaintiff RLC Medical, P.C. (RLC) was not entitled to summary judgment since RLC had failed to respond to defendant's discovery demands which sought information as to whether RLC was ineligible for reimbursement of no-fault benefits because it was a fraudulently incorporated medical provider. Defendant also asserted that the billing submitted by plaintiffs Gentle Care Acupuncture, P.C. (Gentle Care) and Craigg Total Health Family Chiropractic Care, P.C. (Craigg) contained material misrepresentations regarding the services rendered to the assignor. The District Court denied plaintiffs' motion, holding that defendant established that plaintiffs' motion was premature because there was outstanding discovery and that, in any event, defendant raised issues of fact as to whether plaintiff RLC was ineligible for reimbursement of no-fault benefits. This appeal by plaintiffs ensued.
Plaintiffs established their prima facie entitlement to summary judgment by proving the submission of statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue ( see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co. , 5 AD3d 742 ; Amaze Med. Supply v Eagle Ins. Co. , 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d 11th Jud Dists 2003]). We note that the affidavit submitted by plaintiffs' billing manager demonstrated that the annexed claim forms constituted evidence in admissible form ( see CPLR 4518; Fortune Med., P.C. v Allstate Ins. Co. , 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th 10th Jud Dists 2007]).
In opposition to plaintiffs' motion, defendant established that while facts may exist that are essential to justify denial of the branch of the summary judgment motion seeking to recover upon claims submitted by RLC, defendant was unable to set forth sufficient facts to establish the defense of fraudulent incorporation ( see Insurance Department Regulations [ 11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela , 4 NY3d 313 ) since such information was within RLC's possession and RLC had not complied with defendant's discovery demands therefor ( see CPLR 3212 [f]). Consequently, the District Court properly denied the branch of the motion for summary judgment upon the claims submitted by RLC ( see id.; Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. , 15 Misc 3d 110 [App Term, 2d 11th Jud Dists 2007]; Midborough Acupuncture P.C. v State Farm Ins. Co. , 13 Misc 3d 58 [App Term, 2d 11th Jud Dists 2006]).
However, defendant failed to demonstrate the existence of an issue of fact with regard to claims from Gentle Care, in the amounts of $1,045, $1,500, $1,375, $1,090 and $250, and claims from Craigg, in the amounts of $88.44, $370.70, $404.40, $235.90 and $67.40. Defendant denied said claims on the ground that the "injured person" failed to attend scheduled examinations under oath (EUOs). However, defendant's opposition papers allege that plaintiffs' assignor appeared at the EUO. Consequently, since defendant's stated reason for the denials of said claims is not supported by the record, defendant failed to raise a triable issue of fact with respect thereto.
Defendant denied Craigg's $269.60 claim based upon the assignor's EUO testimony. Since the purported EUO transcript annexed to defendant's opposition papers is not in admissible form, we decline to consider it. Accordingly, Craigg was entitled to summary judgment upon said claim.
With regard to the $350.56 claim from Gentle Care, defendant denied it on the basis of Gentle Care's failure to establish a prima facie case of medical necessity. However, defendant's opposing papers did not contain any support for such defense ( see Amaze Med. Supply, 2 Misc 3d 128 [A], 2003 NY Slip Op 51701[U]). Accordingly, Gentle Care was entitled to summary judgment upon said claim.
In light of the foregoing, we do not reach plaintiffs' remaining contentions.
Accordingly, the order is modified by providing that plaintiffs' motion for summary judgment is granted to the extent of granting Gentle Care summary judgment on its claims seeking to recover the sums of $1,045, $1,500, $1,375, $1,090, $350.56 and $250, and granting Craigg summary judgment on its claims seeking to recover the sums of $88.44, $370.70, $404.40, $235.90, $269.60 and $67.40, the matter is remanded to the District Court for the calculation of statutory interest and attorney's fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Tanenbaum, J.P., Molia and LaCava, JJ., concur.