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Elmont Open Mri & Diagnostic Radiology, P.C. v. Geico Ins. Co.

Other Lower Courts

January 18, 2008

Elmont Open MRI Diagnostic Radiology, P.C., dba All County Open MRI Diagnostic Radiology, as assignee of Hoo Gong Lee, Plaintiff,
GEICO Insurance Company, Defendant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.


Attorneys for plaintiff: Friedman, Harfenist, Langer Kraut

Attorneys for defendant: Law Offices of Teresa M. Spina


Andrew M. Engel, J.

The Plaintiff commenced this action to recover no-fault first party benefits in the total sum of $879.73, for medical services allegedly provided to its assignor following a motor vehicle accident of February 2, 2005. The action was commenced on February 6, 2007. Issue was joined on April 10, 2007. The Plaintiff now moves for summary judgment. The Defendant opposes that motion and cross-moves for summary judgment as well. The Plaintiff opposes the Defendant's cross-motion.

Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141 (1978) To prevail, the movant must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 A.D.2d 653, 602 N.Y.S.2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). It is only thereafter incumbent upon the party opposing summary judgment to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). The movant's failure to make such a showing, regardless of the sufficiency of opposing papers, mandates the denial of a summary judgment motion. Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985)


The Plaintiff alleges that it performed an MRI of its assignor's cervical spine on February 26, 2005. The bills for this alleged service was dated March 30, 2005. According to the Plaintiff, this bill was received by the Defendant on April 1, 2005; and, the Plaintiff submits a copy of the denial ("N-F 10") received, dated April 14, 2005, confirming this fact. The Defendant's admission of having received the Plaintiff's claims cures any defect in the Plaintiff's proof of mailing. Prestige Medical Surgical Supply Inc. v. Clarendon National Insurance Company, 13 Misc.3d 127 (A), 824 N.Y.S.2d 758 (App. Term 2nd and 11th Jud. Dists. 2006); Magnezit Medical Care, P.C. v. New York Central Mutual Fire Ins. Co., 12 Misc.3d 144 (A), 824 N.Y.S.2d 763 (App. Term 2nd and 11th Jud. Dists. 2006)

The Plaintiff does not allege that the Defendant's N-F 10 was untimely. The Plaintiff does allege that the Defendant's N-F 10 is improper as to form and must be disregarded. Specifically, the Plaintiff suggests that the N-F 10 was not issued on the forms prescribed by the Insurance Department Regulation 68, having omitted therefrom items 2A through 2F, relating to categories of payments which have been denied in part, and items 3 through 17, relating to all policy issues, loss of earnings benefits and other reasonable and necessary expenses. The redaction of item number 5 also resulted in the omission of advice to the assignor and/or assignee that they may qualify for special expedited arbitration.

To establish its prima facie right to a judgment as a matter of law, the Plaintiff must demonstrate its timely and proper submission of the claims in question and the Defendant's failure to either pay or issue a valid denial within thirty (30) days of receipt of those claims. 11 N.Y.C.R.R. 65-3. (c); Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 N.Y.2d 274, 660 N.Y.S.2d 536 (1997); Nyack Hospital v. State Farm Mutual Automobile Insurance Company, 11 A.D.3d 664, 784 N.Y.S.2d 136 (2nd Dept. 2004); Westchester Medical Center v. AIG, Inc., 36 A.D.3d 900, 829 N.Y.S.2d 180 (2nd Dept. 2007) If the Plaintiff fails to demonstrate each of these elements, by the submission of evidence in admissible form, the Plaintiff's motion will be denied. Such is the case before this court.

The Plaintiff has failed to lay a proper evidentiary foundation for the introduction of its claim forms into evidence. The Defendant's admission of receipt of the Plaintiff's claim forms "did not concede the facts asserted in the claim forms and it remained plaintiff's burden to proffer such evidence in admissible form, which it failed to do (see, Midborough Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 13 Misc.3d 132 (A), 2006 N.Y.Slip Op. 51879(U), supra )." Dan Medical, P.C. v. New York Central Mutual Fire Insurance Company, 14 Misc.3d 44, 829 N.Y.S.2d 404 (App. Term 2nd 11th Jud. Dists. 2006); See also: Fortune Medical, P.C. v. Allstate Insurance Co., 14 Misc.3d 136, 836 N.Y.S.2d 492 (App. Term 9th 10 Jud. Dists. 2007) "Indeed, absent a foundation to establish the admissibility of the provider's claim forms as business records, said claim forms do not constitute proof of the act, transaction, occurrence or event' set forth therein for which plaintiff seeks to recover (CPLR 4518)." Bajaj v. General Assurance, __ Misc.3d __, __ N.Y.S.2d __ 2007 WL 4165268 (App. Term 2nd 11th Jud. Dists. 2007); See also: Ontario Medical, P.C. v. Sea Side Medical, P.C., 15 Misc.3d 129, 839 N.Y.S.2d 435(App. Term 9th 10 Jud. Dists. 2007); V.S. Medical Services, P.C. v. One Beacon Insurance, 14 Misc.3d 142, 836 N.Y.S.2d 504 (App. Term 2nd 11th Jud. Dists. 2006)

In recognition of this significant defect in its motion papers, the Plaintiff attempts, for the first time in reply, to lay a business record foundation for its claim forms. The use of reply papers for this purpose, however, is improper. The purpose of reply papers is to address arguments raised in opposition to the motion, not to permit the introduction of new arguments, issues, grounds or evidence in support of the motion. Merchants Bank of New York v. Gold Lane ...

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