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Civil Court, City of New York.

Ellen Sue GINSBERG D.O.P.C. A/A/O Vernalee Reid, Plaintiff(s), v. HERTZ CLAIM MANAGEMENT CORP. d/b/a Hertz Rent a Car and Hertz Corporation, Defendant(s).


Decided: February 05, 2020

Baker Sanders, LLC Attorneys for Plaintiff Robyn M. Brilliant, P.C. Attorneys for the Defendant

Papers considered in the review of this Motion:

Notice of Motion and Affidavits Annexed: 1

Affirmation in Opposition: 2

Reply Affirmation: 3

In this action by a provider to recover assigned first-party No-Fault benefits for ELLEN SUE GINSBERG D.O.P.C. as Assignee of VARNALEE REID (“Plaintiff”), HERTZ CLAIM MANAGEMENT CORP. D/B/A HERTZ RENT A CAR AND HERTZ CORPORATION (“Defendant”), Defendant moves for summary judgment pursuant to CPLR § 3212 dismissing Plaintiff's Complaint arguing that (i) Plaintiff has been paid in full for dates of service 01/05/15-01/07/15 in the amount of $225.00, and (ii) Plaintiff failed to submit proof of claim or bills to Defendant for dates of service 1/12/15- 1/23/15, or reasonable justification for its failure to submit said claims, as mandated by the no-fault regulation. Plaintiff opposes Defendant's motion arguing that (i) Defendant's proof of payment is insufficient to establish that the bill for dates of service 01/05/15-01/07/15 in the amount of $225.00 was paid in full, and (ii) Defendant's allegation that it did not receive claims or bills for dates of service 1/12/15-1/23/15 is not supported by any affidavit from someone with personal knowledge and it lacks merit. Defendant's reply challenges Plaintiff's representations and asserts that (i) Plaintiff's opposition is insufficient to raise triable issues of fact, and (ii) failed to rebut Defendant's documentary proof. Defendant's motion is denied in part and granted in part.

Summary Judgment

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts. Giuffrida v. Citibank Corp., 100 NY2d 72 (2003). Moreover, NY C.P.L.R. 3212(b) provides, that a summary judgment motion must be supported by an affidavit from a person with knowledge of the facts, setting forth all material facts as well as other admissible evidence. A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden. In addition, the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law. Weingrad, et al., v. New York University Medical Center, 64 NY2d 851 (1985); Liberty Taxi Mgt., Inc. v. Gincherman, 32 AD3d 276 (1st Dep't 2006).

The nonmoving party must establish, by admissible evidence, the existence of a factual issue requiring a trial to determine the dispute. Zuckerman v. City of New York, 49 NY2d 492 (1980). The nonmoving party cannot provide conclusory allegations of fact or law to defeat a summary judgment application. Id. at 562; Century Center Ltd. v. Davis, 100 AD2d 564 (2nd Dept. 1984). The function of the court on a motion for summary judgment is issue finding rather than issue determination, and the court must evaluate whether the alleged factual issues presented are genuine or unsubstantive. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 394 (1957).

Payment for services of 01/05/15-01/07/15 in the amount of $225.00

It is undisputed that Plaintiff submitted a bill for services rendered to the Assignor for dates of service 01/05/15-01/07/15, in the amount of $225.00, and that said bill was received by Defendant. However, Defendant avers that they paid Plaintiff the total amount of said bill, as part of a payment to Plaintiff in the amount of $565.14. Defendant attached to his motion, as evidence, a payment screen and cancelled check (Exhibit B), as well as “a copy of the additional bills included in the 4/22/16 payment totaling $565.14 and the PIP log.” (Exhibit C).

Plaintiff's opposition asserts that Defendant's proof of payment fails to establish that the bill was in fact paid in full. Plaintiff argues that the check fails to indicate the dates of service, was issued one (1) year after receipt of the bill, that the payment ledger attached to Defendant's motion indicated $0 payment for this bill, and that there is no affidavit to support any payment. Defendant's reply states that the payment screen identifies the Assignee as the claimant “for date of service ‘1/5/15-3/10/16’and that check number as ‘3606667’ was issued on ‘4/22/16’. This payment screen also indicted that this check was cashed .by GINSBERG on ‘04/27/16’, more than a year prior to the filing of the instant action.” (Exhibit B).

While the Defendant includes the Rothenberg Affidavit, infra, in its papers; the Rothenberg Affidavit doesn't address the payment procedure. Instead, Defendant relies exclusively on its attorney affirmation to explain and admit the proof of the alleged payment. Such affirmation is clearly not based on personal knowledge. The documents alone do not substantiate the claims made by Defendant, as evidenced by Defendant's attempt to clarify the writing on the payment screen to include the “for dates of service” notation, which is missing from the payment screen, in his affirmation (see Defendant Reply Affirmation p. 3). Affirmations by themselves cannot present evidence in an “admissible form sufficient to require a trial of material questions of fact” Zuckerman, 49 NY2d at 562. “Opposition to summary judgment must be made by a person with personal knowledge” and in failing to do so is of no probative value. Marinelli v. Shifrin, 260 AD2d 227, 228-229 (1st Dep't 1999). Accordingly, the Court finds that the Defendant did not prove its prima facie case by admissible evidence as to payment for dates of service 01/05/15-01/07/15, in the amount of $225.00.

Failure to submit proof of claim or bills for dates of service 01/12/15-01/23/15

Defendant avers that they never received a claim and/or bill from Plaintiff for dates of service 01/12/15-01/23/15 in the amount of $225.00. Defendant's motion contains an affidavit from Jeremy Rothenberg, No-fault Claims Adjuster at HERTZ (“Rothenberg Affidavit”), in which Mr. Rothenberg affirms that he “was in charge of this No-Fault file at the time the bills (which are the subject of this litigation) were submitted to HERTZ,” and was personally responsible for overseeing, reviewing, processing and examining this No-Fault file and this claim (Exhibit D). Rothenberg's Affidavit described his familiarity with the procedure for processing claims, approving payment or denial of claim as a matter of standard procedure in the ordinary course of business at Hertz, that based upon his personal knowledge, a careful and thorough review of this claim and No-Fault file, including the mailing of verification requests and maintaining mailing logs, which are kept in the ordinary course of business and are created contemporaneously. Finally, Mr. Rothenberg attested that “the bills for dates of service 01/12/15-01/15/15 in the amount of $225.00 and 01/20/15-01/23/15 in the amount of $225 were never received by Hertz.” (Exhibit D). Based on the proof submitted, Defendant has met his prima facie burden of proving that the claim and/or bills for dates of service 01/12/15-01/23/15 were not received.

Plaintiff's opposition papers attempt to rebut Mr. Rothenberg's sworn statement merely by providing two (2) copies of screens as proof of timely mailed bills for the dates of service in question and claiming that “each screen provides a tracking number specific for each mailing.” (Exhibit 1). Both arguments were presented through attorney affirmation only without any affidavit based on personal knowledge. As discussed above, affirmations not based on personal knowledge are insufficient to oppose a summary judgment motion. Marinelli, 260 AD2d at 228-229. Plaintiff has not established whether the bills were received by Defendant as a triable factual issue.

In conclusion, Defendant's motion for summary judgment on the payment of bills for dates of service 01/05/15-01/07/15 is denied and granted on the non-receipt of the claim or bills to HERTZ for dates of service 01/12/15-01/23/15. The case may procced to trial on the one remaining triable issue in dispute. The matter is hereby set down for trial on August 31, 2020 at 9:30 a.m. in room 505.

This constitutes the Decision and Order of the Court.

Marissa Soto, J.

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