| State of New York v Swezey |
| 2014 NY Slip Op 08003 [122 AD3d 829] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| State of New York, Respondent, v AndrewSwezey, Appellant. |
Andrew M. Schnier, New York, N.Y., for appellant.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu,Michael S. Belohlavek, and David Lawrence III of counsel), for respondent.
In an action to recover payment for medical services rendered, the defendant appealsfrom an order of the Supreme Court, Suffolk County (Spinner, J.), dated April 29, 2013,which granted the plaintiff's motion for summary judgment on the complaint.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionfor summary judgment on the complaint is denied.
In this action to recover payment for medical services allegedly provided to thedefendant during his hospitalization at University Hospital, State University of NewYork at Stony Brook (hereinafter the hospital), the plaintiff served a brief complaintgenerally alleging that certain unspecified services were provided, that those serviceswere reasonable, necessary, and proper under the circumstances, that the total cost ofthose services was $85,354.48, that the plaintiff billed the defendant for the services, andthat the defendant failed and refused to make payment. In his verified answer, thedefendant specifically denied the allegations that the services were reasonable, necessary,and proper, that their total cost was $85,354.48, and that he had been billed for theservices and had refused to pay for them.
The plaintiff then moved for summary judgment on the complaint, submitting anaffirmation of its attorney, a redacted hospital billing statement which omitted anymention of the actual medical services rendered and treatment provided to the defendant,and an affirmation of the hospital's Patient Accounts Manager asserting that the redactedstatement constituted a "true and complete cop[y]" of the original, and that "[a]ll normalprocedures to bill this account were properly undertaken." The defendant opposed themotion with his own affidavit in which he reiterated his denial of the material allegationsin the complaint and argued that the plaintiff's submissions on the motion failed todemonstrate its prima facie entitlement to summary judgment. The Supreme Courtgranted the motion.
The plaintiff failed to establish its prima facie entitlement to judgment as a matter oflaw, since the affirmation of its counsel, who lacked personal knowledge of the facts, andthe redacted hospital billing statement, which failed to specify the medical servicesprovided, were of no evidentiary value in establishing the nature of the services, whetherthey were reasonable and [*2]necessary, and whether thecharges for them were appropriate (see generally Alvarez v Prospect Hosp., 68NY2d 320, 325 [1986]; Viacom Intl. v Midtown Realty Co., 193 AD2d 45, 54-55[1993]). The generalized and conclusory assertions set forth in the complaint and in theaffirmation of the plaintiff's patient accounts manager did not cure these defects. Likewise, those assertions wereinsufficient to establish entitlement to summary judgment on a claim of account statedbecause they failed to make the requisite showing that the defendant received andretained the plaintiff's invoices without raising an objection to them (see generally Pryor &Mandelup, LLP v Sabbeth, 82 AD3d 731, 732 [2011]; Ziskin Law Firm, LLP v Bi-CountyElec. Corp., 43 AD3d 1158, 1159 [2007]; Werner v Nelkin, 206 AD2d422, 422-423 [1994]).
Since the plaintiff failed to sustain its prima facie burden on the motion, the SupremeCourt should have denied its motion for summary judgment without regard to whetherthe defendant's opposition papers were sufficient to raise a triable issue of fact (seegenerally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Roman-Cabrera v THJ Transp.Corp., 107 AD3d 682 [2013]).
In view of the foregoing, we need not reach the defendant's remaining contention.Mastro, J.P., Skelos, Roman and Maltese, JJ., concur.