March 31, 2005

A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NYSlipOp 50453(U))

Headnote

The relevant facts considered by the court in this case involved a dispute over first-party no-fault benefits for medical services rendered to an assignor by plaintiff Daniel Kim's Acupuncture P.C. The main issue decided by the court was whether plaintiff Daniel Kim's Acupuncture P.C. was entitled to summary judgment, and whether the peer review report included by the defendant in its opposition was admissible. The holding of the case was that plaintiff Daniel Kim's Acupuncture P.C. established a prima facie entitlement to summary judgment and that the peer review report included by the defendant was unsworn and inadmissible. As a result, summary judgment was granted in favor of plaintiff Daniel Kim's Acupuncture P.C. The matter was remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees. The appeal by the remaining appellants was dismissed.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NYSlipOp 50453(U))

A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NYSlipOp 50453(U)) [*1]

A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co.

2005 NYSlipOp 50453(U)

Decided on March 31, 2005

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-572 K C

A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. DANIEL KIM’S ACUPUNCTURE P.C. SQUARE SYNAGOGUE TRANSPORTATION INC. a/a/o Rema Adams, Appellants,
against
LIBERTY MUTUAL INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered on November 20, 2003, as denied the motion for summary judgment by plaintiff Daniel Kim’s Acupuncture P.C.

Order, insofar as appealed from by plaintiff Daniel Kim’s Acupuncture P.C., unanimously reversed without costs, motion by plaintiff Daniel Kim’s Acupuncture P.C. for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees. [*2]

Appeal by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Square Synagogue Transportation Inc. unanimously dismissed.

In this action, inter alia, to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff Daniel Kim’s Acupuncture P.C. established a prima facie entitlement to summary judgment by proof that it submitted the claims, 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 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The peer review report included by defendant in its opposition papers does not warrant denial of plaintiff’s motion for summary judgment, since said report was unsworn, and was therefore not in admissible form (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v N.Y. Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]; cf. CPLR 2106). In view of the foregoing determination, we need not address the parties’ remaining contentions.

Accordingly, summary judgment is granted in favor of plaintiff Daniel Kim’s Acupuncture P.C., and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Inasmuch as no issue is raised by the remaining appellants, the appeal with respect to them is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).
Decision Date: March 31, 2005