A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50902(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the District Court, Nassau County (J. Asarch, J.), entered January 2, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

Plaintiffs commenced this action to recover first-party no-fault benefits for medical services rendered to their assignor, as well as statutory interest and attorney’s
fees, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved for
summary judgment and defendant cross-moved for consolidation and summary
judgment dismissing the complaint. By order entered January 2, 2003, the court below denied both motions.

In support of its motion, plaintiffs submitted an affidavit in which Bella Safir states that she is the “practice and billing manager” and “an officer of plaintiff,” even though there are three distinct plaintiffs in this matter. We note that A.B. Medical Services, PLLC and Royalton Chiropractic P.C. have different business addresses, and no address is provided for Franklin St. Marks Medical P.C., for which there is also no assignment. The affidavit does not indicate for which “plaintiff” Safir is the billing manager and this court cannot assume that she is acting on behalf of one particular plaintiff, or on behalf of all of the plaintiffs. Consequently, her affidavit in which she states that “plaintiff” provided defendant with complete claim forms is insufficient to establish said fact inasmuch as the affidavit does not lay the necessary foundation for the admissibility of the claim forms as to any of the named plaintiffs (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., Misc 3d [App Term, 9th & 10th Jud Dists, decided Mar. 12, 2004]). Accordingly, plaintiffs have failed to make a prima facie showing of entitlement to judgment as a matter of law (cf. Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Amaze Med. Supply Inc. [*2]v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Assuming, arguendo, that Safir’s affidavit was sufficient and plaintiffs established their prima facie entitlement to summary judgment, we would nonetheless affirm the order of the court below inasmuch as defendant raised a triable issue of fact as to fraud (see A. B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., Nos. 2003-469, 470, 471 N C [decided herewith]).
Decision Date: March 17, 2004