Craigg Total Health Family Chiropractic Care PC v QBE Ins. Corp., 2008 NY Slip Op 51398(U) (Nassau Dist Ct)
Plaintiffs claim that they have established their prima facie case for summary judgment by showing that the claim forms were timely and properly submitted and that Defendant has either failed to pay or failed to properly deny the claim within the statutory time frame (11 NYCRR ยง65-3.8[c]; Westchester Medical Center v. AIG, Inc., 36 AD3d 900 [2d Dept 2007]).The affidavit on its face fails to lay any foundation for any of the documents attached to Plaintiffs’ motion. It fails to provide any specific information regarding to who is her actual employer. Although Plaintiffs have offered defendant’s denials as acknowledgment of receipt of the bills provided, Plaintiffs have failed to lay a sufficient evidentiary foundation in satisfaction of CPLR 4518. Despite Ms. Safir’s purported personal knowledge of the manner in which Plaintiffs’ records are ordinarily kept, her affidavit fails to demonstrate what the manner consisted of and whether the records were recorded at the time the services were provided to its assignor or within a reasonable time thereafter, where the document was created, if it was created in the ordinary course of business and whether it is the regular course of the business to prepare said documents. Further, Ms. Safir fails to demonstrate that the procedures ordinarily implemented by Plaintiffs’ offices were the procedures implemented on the date the services were rendered to Plaintiffs’ assignor.
Since the affidavit of Plaintiffs’ biller was insufficient to lay a foundation for the admission, as business records, of the documents annexed to Plaintiff’s moving papers, Plaintiffs have failed to establish a prima facie showing of their entitlement to summary judgment. Accordingly, Plaintiff’s motion is denied.