November 2, 2006

AB Med. Servs., PLLC v Lancer Ins. Co. (2006 NY Slip Op 52241(U))

Headnote

The relevant facts the court considered in this case were that plaintiff AB Medical Services, PLLC, sought to recover first-party no-fault benefits for medical services rendered to its assignor. Plaintiff moved for partial summary judgment, while defendant cross-moved for summary judgment dismissing the complaint. The main issue decided by the court was whether plaintiff had established its prima facie entitlement to summary judgment by annexing the claim forms being sued upon to its motion papers. The court found that plaintiff did not annex any exhibits to its moving papers, and the document entitled "EXHIBITS SERVED WITH THE PLAINTIFF'S SUMMARY JUDGMENT MOTION" was rejected by the court below and not considered in reaching its determination. Therefore, the court affirmed the order denying plaintiff's motion for partial summary judgment without costs and without prejudice to renewal upon proper papers.

Reported in New York Official Reports at AB Med. Servs., PLLC v Lancer Ins. Co. (2006 NY Slip Op 52241(U))

AB Med. Servs., PLLC v Lancer Ins. Co. (2006 NY Slip Op 52241(U)) [*1]

AB Med. Servs., PLLC v Lancer Ins. Co.

2006 NY Slip Op 52241(U) [13 Misc 3d 139(A)]

Decided on November 2, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1954 K C.

AB Medical Services, PLLC a/a/o FELICIA LEGALL, Appellant,
against
Lancer Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered April 8, 2005. The order, insofar as appealed from as limited by plaintiff’s brief, denied plaintiff’s motion for partial summary judgment.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor on the ground that payment of said benefits was overdue. Thereafter, it moved for partial summary judgment and defendant cross-
moved for summary judgment dismissing the complaint. By order entered April 8, 2005, the court below denied both motions without prejudice to renewal upon proper papers. The instant appeal by plaintiff ensued.

In order to establish its prima facie entitlement to summary judgment (see generally 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]), plaintiff was required, inter alia, to annex to its motion papers the claim forms being sued upon (see Patil v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 9th & 10th Jud Dists]; A.B. Med. Servs. PLLC v State Farm Mut. [*2]Auto Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists]). A review of the record on appeal indicates that plaintiff did not annex any exhibits to its moving papers. We note that the document entitled “EXHIBITS SERVED WITH THE PLAINTIFF’S SUMMARY JUDGMENT MOTION,” was rejected by the court below and was not considered by the court in reaching its determination. Plaintiff’s contention regarding defendant’s exhibits
lacks merit. Accordingly, the court below properly denied plaintiff’s motion for partial summary judgment without prejudice to renewal upon proper papers.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 02, 2006