Opinion
2009-804 Q C.
Decided March 8, 2010.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 18, 2009. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed without costs and defendant's motion for summary judgment dismissing the complaint is granted.
PRESENT: WESTON, J.P., GOLIA and RIOS, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. Plaintiff opposed the motion. The Civil Court's order, insofar as appealed from, denied defendant's motion, finding that plaintiff's doctor's affirmation raised a triable issue of fact as to whether the services provided were medically necessary.
Defendant, through the submission of the affidavit of its claims representative and the affirmed independent medical examination report of its examining doctor, made a prima facie showing that it had properly and timely denied plaintiff's claim based on lack of medical necessity ( see Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co. , 23 Misc 3d 132[A], 2009 NY Slip Op 50731[U] [App Term, 2d, 11th 13th Jud Dists 2009]). The burden then shifted to plaintiff to raise a triable issue of fact ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324).
In opposition to defendant's motion, plaintiff submitted an affirmation executed by Dr. Leena Doshi, who described herself as the "owner and medical director of plaintiff." Defendant objected to the submission of said affirmation in its reply papers, citing CPLR 2106. Since Dr. Doshi was a principal of plaintiff professional corporation, a party to the action, the submission of her affirmation was improper, and the Civil Court should not have considered any facts set forth in said affirmation ( see CPLR 2106; St. Vincent Med. Care, P.C. v Mercury Cas. Co. , 23 Misc 3d 135 [A], 2009 NY Slip Op 50810[U] [App Term, 2d, 11th 13th Jud Dists 2009]; see also Samuel Weininger v Belovin Franzblau , 5 AD3d 466; Pisacreta v Minniti, 265 AD2d 540; Richard M. Gordon Assoc., P.C. v Rascio , 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d 11th Jud Dists 2006]). As plaintiff failed to proffer any evidence in admissible form to raise an issue of fact ( see Zuckerman v City of New York, 49 NY2d 557), defendant was entitled to summary judgment. Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
Weston, J.P., Golia and Rios, JJ., concur.