Opinion
2006-244 Q C.
Decided on June 8, 2007.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered October 24, 2005, deemed an appeal from a judgment entered on December 9, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 24, 2005 order denying defendant's motion for summary judgment and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $7,498.62.
Judgment reversed without costs, order entered October 24, 2005 vacated insofar as it granted plaintiff's cross motion for summary judgment and plaintiff's cross motion for summary judgment denied.
Present: PESCE, P.J., GOLIA and RIOS, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing plaintiff's complaint based upon plaintiff's assignor's failure to appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant annexed, inter alia, copies of claim forms, denial of claim forms (NF-10s) and letters scheduling the IMEs. Plaintiff cross-moved for summary judgment. Plaintiff's cross motion was supported by an affirmation of plaintiff's counsel and by an affidavit executed by Boris Zigmond, D.C., the "principal doctor" of plaintiff. There were no claim forms or NF-10s annexed with its cross motion. Rather, Zigmond stated in his affidavit that he was "informed" that the foregoing documents were annexed to defendant's motion. The court below denied defendant's motion for summary judgment and granted plaintiff's cross motion for summary judgment. The instant appeal by defendant ensued.
On appeal, defendant asserts that the affidavit submitted by Zigmond in support of the cross motion, failed to lay a proper foundation for the documents annexed to defendant's moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by Zigmond was insufficient to establish that he possessed sufficient personal knowledge so as to lay a foundation for the admission, as business records, of the documents upon which plaintiff relied. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment ( see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135 [A], 2007 NY Slip Op 50179[U] [App Term, 2d 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d 11th Jud Dists 2006]). Consequently, plaintiff's cross motion for summary judgment should have been denied.
With respect to defendant's motion based upon the assignor's failure to appear for scheduled IMEs, the affidavit submitted by defendant in support of its motion was insufficient to establish the mailing of the IME notices and the assignor's nonappearance at the IMEs ( see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720; New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547). To the extent defendant also sought dismissal of some of plaintiff's claims on the ground that the fees charged were not in conformity with the Workers' Compensation fee schedule, defendant did not proffer sufficient evidence to establish as a matter of law that said claims reflected the incorrect amount for the services provided ( see Abraham v Country-Wide Ins. Co., 3 Misc 3d 130 [A], 2004 NY Slip Op 50388[U] [App Term, 2d 11th Jud Dists]). Accordingly, the court below properly denied defendant's motion for summary judgment.
Pesce, P.J., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
PRESENT PESCE, P.J., GOLIA and RIOS, JJ.
I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.