Tuesday, May 27, 2008

Provider Fails to Make Prima Facie Showing for Summary Judgment

Rockaway Med. & Diagnostic, P.C. a/a/o Kareem Bruce v. Utica Mut. Ins. Co.
(App. Term, 2nd Dept., decided 4/30/2008)

Plaintiff medical provider moved for summary judgment on its $1,758.40 in billings, submitting in support of its motion an affirmation from plaintiff's counsel, an affidavit from plaintiff's office services supervisor, and an unaffirmed, undated letter of medical necessity. Defendant Utica Mutual opposed plaintiff's motion based on the asserted inadmissibility of the documents annexed to plaintiff's motion papers and cross-moved for summary judgment based on the plaintiff's assignor's failure to appear for an EUO and plaintiff's asserted breach of a "so-ordered" discovery stipulation (one prepared by counsel and submitted to the judge for a "so ordered" signature).

In REVERSING the lower court's award of summary judgment to the plaintiff, the Appellate Term agreed with Utica Mutual that plaintiff had failed to establish the admissibility of the claim forms annexed to its motion papers:
The affidavit submitted by plaintiff's office services supervisor was insufficient 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. In any event, plaintiff failed to annex to its motion for summary judgment the claim forms upon which it sought to recover. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment.
With respect to Utica Mutual's cross motion, however, the Appellate Term sustained the lower court's denial of that cross motion, holding that Utica Mutual had failed to demonstrate that plaintiff's causes of action were premature (Editor's Note: Utica Mutual apparently must also have asserted an incomplete verification defense). The court also pointed out that plaintiff did not breach the so-ordered discovery stipulation because discovery was stayed during the pendency of plaintiff's summary judgment motion, in accordance with CPLR § 3214(b) and the so-ordered stipulation made no provision for extensions being prohibited without leave of court (Practice Pointer: consider including such a provision in so-ordered discovery stipulations).

The decision says nothing either way about Utica Mutual's defense based on the assignor's failure to appear for an EUO. Don't know what became of that defense or why Utica Mutual apparently argued incomplete verification rather than breach of the EUO condition in support of its cross motion and/or on appeal.

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