February 27, 2006

Patil v Countrywide Ins. Co. (2006 NY Slip Op 50306(U))

Headnote

The court considered the fact that the plaintiff, Dr. Patil, sought to recover first-party no-fault benefits from Countrywide Insurance Company. The main issue decided was whether the plaintiff had established a prima facie entitlement to summary judgment by submitting statutory claim forms showing the amount of losses sustained and that the payment of benefits was overdue, as required by Insurance Law § 5106(a). The court held that the plaintiff's motion for summary judgment was properly denied because the necessary claim forms were not properly appended to the motion papers, and the affirmation by the plaintiff's attorney without personal knowledge did not constitute a proper vehicle for the admissibility of the claim forms. The court also noted that a nurse's peer review may be competent to establish the admissibility of medical opinions and conclusions, but the plaintiff's motion was properly denied with leave to renew upon submission of proper papers.

Reported in New York Official Reports at Patil v Countrywide Ins. Co. (2006 NY Slip Op 50306(U))

Patil v Countrywide Ins. Co. (2006 NY Slip Op 50306(U)) [*1]

Patil v Countrywide Ins. Co.

2006 NY Slip Op 50306(U) [11 Misc 3d 130(A)]

Decided on February 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ
2005-229 N C.

Dr. Patil, M.D., as assignee of DANNY PHARBOO, Appellant,
against
Countrywide Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Howard S. Miller, J.), dated December 20, 2004. The order denied plaintiff’s motion for summary judgment with leave to renew upon submission of proper papers.

Order unanimously affirmed without costs.

In an action to recover first-party no-fault benefits, a plaintiff provider establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms, setting forth the fact and amounts of the losses 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]). Further, the necessary claim forms must be appended to plaintiff’s motion papers in order to establish a prima facie case (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists]).

In support of plaintiff’s motion, plaintiff’s attorney indicated that appended thereto were the subject claim forms being sued upon. Such affirmation by an attorney without personal knowledge does not constitute a proper vehicle for the admissibility of the claim forms (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Moreover, the affidavit of plaintiff [*2]provider made no specific reference to the appended claim forms. Under the circumstances, plaintiff’s motion for summary judgment was properly denied with leave to renew upon submission of proper papers.

We note that the court below correctly determined that a nurse’s peer review may be competent to establish the admissibility of the medical opinions and conclusions contained therein provided that the reviewer’s training, observations and
actual experience to render such opinions are sufficiently set forth (see People v Lewis, 16 AD3d 173 [2005]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]).

In view of the determination herein, we reach no other issue.
Decision Date: February 27, 2006