Opinion
2008-1798 N C.
Decided June 29, 2009.
Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered July 2, 2008. The order denied plaintiffs' motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
Order modified by providing that defendant's cross motion for summary judgment is denied; as so modified, affirmed without costs.
PRESENT: RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ.
In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing, inter alia, that plaintiffs had failed to lay a foundation for the admission, as business records, of the documents annexed to their motion and that plaintiffs' assignor had failed to appear for scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The District Court denied plaintiffs' motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint. This appeal by plaintiffs ensued.
Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs' medical biller failed to establish that the documents annexed to plaintiffs' moving papers were admissible pursuant to CPLR 4518 ( see Alvarez v Prospect Hosp., 68 NY2d 320; Art of Healing Medicine, P.C. v Travelers Home Mar. Ins. Co. , 55 AD3d 644 ; 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]). Consequently, plaintiffs' motion for summary judgment was properly denied.
With regard to defendant's cross motion for summary judgment, while defendant asserted that it had timely denied plaintiffs' claims on the grounds that the assignor had failed to appear at scheduled EUOs and IMEs, defendant failed to establish by proof in admissible form that the assignor had not appeared for the EUOs and IMEs ( see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. , 35 AD3d 720 ). As a result, defendant's cross motion for summary judgment should have been denied.
The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated ( see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.
Scheinkman, J., taking no part.