Vinings Spinal Diagnostics v Progressive Cas. Ins. Co. (2008 NY Slip Op 51468(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Valerie J. Bullard, J.), dated May 8, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered May 8, 2006, the court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. The instant appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff’s owner was insufficiently specific to establish that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment was properly denied.

The court erred in granting defendant’s cross motion for summary judgment dismissing the complaint because there is an issue of fact as to whether defendant’s denial of claim form was [*2]timely. Although defendant contends that its denial of claim form was timely because it was issued within 30 days of being received at the proper claims processing office (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]), its affiant did not set forth facts sufficient to prove that the address plaintiff used was the improper address. As a result, defendant failed to demonstrate that the 30-day claim determination period was extended and, therefore, failed to establish its prima facie entitlement to summary judgment. We do not pass on the issue of medical necessity. Accordingly, defendant’s cross motion for summary judgment dismissing the complaint is denied.

Rudolph, P.J., Molia and Scheinkman, JJ., concur.
Decision Date: April 29, 2008