October 2, 2007

Lexington Acupuncture, P.C. v MVAIC (2007 NY Slip Op 51973(U))

Headnote

The provider's summary judgment award on two assignors' claims was reversed for failure to establish a business-records foundation. MVAIC challenged the supporting employee affidavit on appeal. The affidavit did not demonstrate the employee's personal knowledge of the provider's practices and procedures sufficient to support admission of the documents attached to the motion. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, found that the provider failed to establish prima facie entitlement to summary judgment, reversed the order, and denied its motion on those two causes of action; the court reached no other issue.

Reported in New York Official Reports at Lexington Acupuncture, P.C. v MVAIC (2007 NY Slip Op 51973(U))

[*1]
Lexington Acupuncture, P.C. v MVAIC
2007 NY Slip Op 51973(U) [17 Misc 3d 129(A)]
Decided on October 2, 2007
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 2, 2007
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-1103 K C.

Lexington Acupuncture, P.C. a/a/o IASHAWN ABRAMS, ARTIE BUCKLEY, NATAKI CROOKS and SOFIYA GOLDBERG, Respondent,

against

MVAIC, Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered March 28, 2006. The order granted plaintiff’s motion for summary judgment upon the causes of action relating to assignors Nataki Crooks and Sofiya Goldberg.


Order reversed without costs and plaintiff’s motion for summary judgment upon the causes of action relating to assignors Nataki Crooks and Sofiya Goldberg denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment upon the causes of action relating to assignors
Nataki Crooks and Sofiya Goldberg. The court below granted plaintiff’s motion and this appeal by defendant ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s employee, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s employee was insufficient to establish that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip [*2]Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

In view of the foregoing, we reach no other issue.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: October 02, 2007

Cited in this decision

Similar decisions