Opinion
No. 2011–1992 K C.
2013-03-29
JAMAICA MEDICAL PLAZA, P.C. as Assignee of Valerie Sheafe–Duberry, Respondent, v. INTERBORO INSURANCE COMPANY, Appellant.
Present: PESCE, P.J., RIOS and SOLOMON, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 4, 2011. The order, insofar as appealed from as limited by the brief, denied the branches of defendant's motion seeking summary judgment dismissing the complaint or, in the alternative, an order compelling plaintiff to appear for an examination before trial and granted the branch of plaintiff's cross motion seeking a finding, pursuant to CPLR 3212(g), that plaintiff had established its prima facie case.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, for a finding, pursuant to CPLR 3212(g), that “the dated correspondence are timely, valid and that these facts have been proved prima facie,” and for an order compelling plaintiff to appear for an examination before trial (EBT). Plaintiff cross-moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212(g), that plaintiff had established its prima facie case. The Civil Court “granted” both motions to the extent of finding that the “only issues remaining for trial related to the medical necessity of the services provided and ... if the billing was in accordance with the New York State Workers' Compensation Fee Schedule.” Defendant appeals, as limited by its brief, from so much of the order of the Civil Court as denied the branches of defendant's motion seeking summary judgment dismissing the complaint or, in the alternative, an order compelling plaintiff to appear for an EBT and granted the branch of plaintiff's cross motion seeking a finding, pursuant to CPLR 3212(g), that plaintiff had established its prima facie case.
Plaintiff submitted an affirmation by its treating physician which was sufficient to raise triable issues of fact as to the medical necessity of the services rendered ( see Alur Med. Supply, Inc. v. GEICO Ins. Co., 31 Misc.3d 126[A], 2011 N.Y. Slip Op 50438[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ), and as to whether the fees charged were in accordance with the Workers' Compensation fee schedule. Consequently, the branch of defendant's motion seeking summary judgment was properly denied. However, the branch of defendant's motion seeking an order compelling plaintiff to appear for an EBT should have been granted ( seeCPLR 3101[a] ). Defendant's moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant's defense.
With respect to the Civil Court's finding, pursuant to CPLR 3212(g), that plaintiff had established its prima facie case, we conclude, contrary to defendant's contention, that the affidavit by plaintiff's billing and collection department administrator was sufficient to establish that the claim forms annexed to plaintiff's cross motion were admissible as proof of the acts, transactions, occurrences, or events recorded therein, pursuant to CPLR 4518(a) ( see Matter of Carothers v. GEICO Indem. Co., 79 AD3d 864 [2010];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] ).
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking to compel plaintiff to appear for an EBT is granted upon the terms set forth above.