March 12, 2004

A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50903(U))

Headnote

The relevant facts considered by the court included a motion for summary judgment by the plaintiffs to recover first-party no-fault benefits for medical services rendered to their assignor, as well as statutory interest and attorney's fees. The plaintiffs submitted an affidavit that was deemed insufficient to establish that the claim forms were properly completed, as it did not specify for which plaintiff the affiant was acting as the billing manager. The main issue decided was whether the affidavit provided sufficient evidence for the plaintiffs' entitlement to summary judgment. The court held that the affidavit was insufficient to establish that the claim forms were properly completed, and therefore the plaintiffs failed to make out their prima facie entitlement to summary judgment. The order denying the plaintiffs' motion for summary judgment was affirmed.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50903(U))

A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50903(U)) [*1]

A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co.

2004 NY Slip Op 50903(U)

Decided on March 12, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

PRESENT:McCABE, P.J., LIFSON and SKELOS, JJ.
NO. 2003-612 N C

A.B. MEDICAL SERVICES PLLC DANIEL KIM’S ACUPUNCTURE P.C. D.A.V. CHIROPRACTIC P.C. G.S. PHYSICAL THERAPY P.C. a/a/o VLADIMIR ABRAHAMYAN, Appellants,
against
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from so much of an order of the District Court,

Nassau County (S. Kluewer, J.), entered December 2, 2002, as denied their motion for summary judgment.

Order 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 summary judgment dismissing the complaint. Both motions were denied by order entered December 2, 2003.

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 four distinct plaintiffs in this matter. Although A.B. Medical Services, PLLC and D.A.V. Chiropractic, P.C. have the same business address, Daniel Kim’s Acupuncture, P.C. has a different address and no address is provided for G.A. Physical Therapy, P.C. The affidavit does not indicate for which plaintiff she 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, this affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see 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. v Eagle Ins. Co.,
NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), and we find that the court below correctly determined that plaintiffs failed to make out their prima facie entitlement to summary judgment.
Decision Date: March 12, 2004