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Lde Medical Services, P.C. As Assignee of Raeshia Mcqueen v. Encompass Insurance

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


May 24, 2011

LDE MEDICAL SERVICES, P.C. AS ASSIGNEE OF RAESHIA MCQUEEN,
RESPONDENT,
v.
ENCOMPASS INSURANCE,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 17, 2009, deemed from a judgment of the same court entered August 6, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 17, 2009 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $370.34.

LDE Med. Servs., P.C. v Encompass Ins.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2011

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

ORDERED that the judgment is reversed, without costs, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff's motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to defendant's contention, the affidavit submitted by plaintiff's billing administrator was sufficient to establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). However, as the pertinent facts concerning the failure of plaintiff's assignor to appear for an examination under oath are the same as those in LDE Med. Servs., P.C. v Encompass Ins. (29 Misc 3d 130[A], 2010 NY Slip Op 51845[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), for the reasons stated in that case, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion is denied. We reach no other issue.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: May 24, 2011

20110524

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