A.B. Med. Servs. Pllc v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 50692(U))

A.B. Med. Servs. v Lumbermens Mut. Cas. Co.

2004 NY Slip Op 50692(U)

Decided on June 30, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.

A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. DANIEL KIM'S ACUPUNCTURE P.C. ROYALTON CHIROPRACTIC P.C. a/a/o Zamor Garry, Appellants,

against

LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered May 12, 2003, which denied their motion for summary judgment.

Plaintiffs commenced this action to recover first-party no-fault benefits for medical services they allegedly provided to their injured assignor. In support of their motion,
plaintiffs submitted an affidavit in which David Safir stated that he is the "practice and billing manager of plaintiff," even though there are four distinct plaintiffs in this matter. Although A.B. Medical Services, PLLC and D.A.V. Chiropractic P.C. have the same business address, Daniel Kim's Acupuncture, P.C. and Royalton Chiropractic P.C. have different addresses. The affidavit does not indicate for which plaintiff he is the practice and billing manager, and this court cannot assume that he is acting on behalf of one particular plaintiff, or on behalf of all of the plaintiffs. Consequently, this affidavit is insufficient to establish that plaintiffs provided defendant with [*2]properly completed claim forms (A.B. Med. Servs. v Allstate Ins. Co., 3 Misc 3d 129 [A], 2004 NY Slip Op 50373 [U] [App Term, 2d & 11th Jud Dists]). As a result, plaintiffs' motion for summary judgment was properly denied inasmuch as plaintiffs did not satisfy their burden of establishing a prima facie entitlement to judgment as a matter of law (see Alvarez v [*3]
Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; A.B. Med. Servs., 3 Misc 3d 129 [A], 2004 NY Slip Op 50373 [U]).

We further note that where an insurer adequately establishes that it possesses a "founded belief that the alleged injury does not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), it may assert a fraudulent scheme, such as a staged accident, as a viable defense inasmuch as it is not an insured incident (id.).