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SZ Medical3/22/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
PRESENT: McCABE, P.J., ANGIOLILLO and COVELLO, JJ.
Appeal by plaintiffs from so much of an order of the District Court, Nassau County (E. Prager, J.), entered on November 19, 2003, as denied their motion for summary judgment, and cross appeal by defendant from so much of the same order as denied its cross motion for summary judgment dismissing the complaint.
Order unanimously affirmed without costs.
Plaintiffs commenced the instant action seeking to recover first-party no-fault benefits for medical services rendered to their assignors, Thomas Nelson, the operator of a motor vehicle rented from defendant's insured, NYRAC, Inc. d/b/a Budget-Rent-A-Car, and Patrice Nelson, a passenger in the same vehicle, both of whom were allegedly injured in an automobile accident on April 11, 2002. Plaintiffs thereafter moved for summary judgment. In support of their motion, plaintiffs submitted an affidavit in which Janet Safir stated that she was the "practice and billing manager" of "plaintiff," even though there were three distinct plaintiffs in this matter. The affidavit did not indicate for which "plaintiff" Safir was the billing manager and this court cannot assume that she was acting on behalf of one particular plaintiff or on behalf of all plaintiffs. Consequently, the affidavit is insufficient to establish that plaintiffs provided defendant with properly completed forms (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 83 [App Term, 9th & 10th Jud Dists 2004]; A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp., 4 Misc 3d 135 , 2004 NY Slip Op 50779 [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiffs failed to make a prima facie showing of entitlement to judgment as a matter law. Thus, we find that their motion was properly denied, albeit on grounds other than those relied upon by the court below.
Contrary to defendant's contention, denial of its cross motion for summary judgment dismissing the complaint was proper. In its supporting papers, defendant alleged that the examination under oath of plaintiffs' assignor, Thomas Nelson, indicated that the rental vehicle was used as a "temporary substitute" vehicle due to faulty brakes in his own vehicle which was insured by First Beacon Insurance at the time of the accident. Defendant argued that First Beacon Insurance was thereby the primary insurer for the rental vehicle, and that plaintiffs were not entitled to recover no-fault benefits under the Personal Injury Protection Endorsement in the automobile liability policy issued by defendant to NYRAC, Inc. d/b/a Budget-Rent-A-Car. The court below denied defendant's cross motion on the ground that the parties did not provide the insurance policy issued by First Beacon Insurance to plaintiffs' assignor, Thomas Nelson, in the absence of which it could not be determined whether the policy included a "temporary substitute" clause, "thereby rendering the defendant not responsible for said claim." We affirm the order insofar as it denied defendant's cross motion, although not for the reasons set forth by the court below.
Insurance Law § 5105 (b) provides that the mandatory arbitration procedures promulgated or approved by the Superintendent of Insurance for claims arising from § 5105 (a), "shall also be utilized to resolve all disputes arising between insurers concerning their responsibility for the payment of first party benefits" (Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 ). The applicable insurance regulations provide in pertinent part that "an applicant who is an operator or occupant of an insured moto
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