January 29, 2010
WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co. (2010 NY Slip Op 50146(U))
https://www.beynensonlaw.com/case-law/wjj-acupuncture-p-c-v-liberty-mut-fire-ins-co-2010-ny-slip-op50146u/
- Decided
- January 29, 2010
- Citation
- 2010 NY Slip Op 50146(U) · 26 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Legal questions
- Claimant's prima facie case on motions (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co. (2010 NY Slip Op 50146(U))
| WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co. |
| 2010 NY Slip Op 50146(U) [26 Misc 3d 135(A)] |
| Decided on January 29, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-1518 K C.
against
Liberty Mutual Fire Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 28, 2007. The order denied plaintiff’s motion for summary judgment.
ORDERED that the order is affirmed without costs.
In this action by a provider to recover first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation of plaintiff’s counsel, an “affidavit” by plaintiff’s owner which was unsigned, and various documents annexed thereto. In opposition to plaintiff’s motion, defendant asserted that the “affidavit” of plaintiff’s owner was insufficient to establish plaintiff’s prima facie case. The Civil Court denied plaintiff’s motion on the ground that plaintiff had failed to submit an affidavit bearing the signature of the purported affiant. This appeal by plaintiff ensued.
Since the “affidavit” was not signed by the purported affiant, it did not constitute evidence in admissible form (see Hargrove v Baltic Estates, 278 AD2d 278 [2000]; Huntington Crescent Country Club v M & M Auto & Mar. Upholstery, 256 AD2d 551 [1998]; New Dorp Ch. 2712 of AARP, Inc. v A.A.W. Travel, Inc., 22 Misc 3d 141[A], 2009 NY Slip Op 50442[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Comprehensive Mental Assessment & Med. Care v Merchants & Businessmen’s Mut. Ins. Co., 196 Misc 2d 134 [2003]). As the affirmation of plaintiff’s counsel was insufficient to establish plaintiff’s prima facie case (Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]), plaintiff’s motion for summary judgment was properly denied.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 29, 2010
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)
Held the provider failed its prima facie case because its owner's affidavit was unsigned and thus not admissible evidence, and counsel's affirmation alone could not establish the claim.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51879(U)) FollowedThe provider's attorney affirmation failed to establish the admissibility of its claim forms or a prima facie entitlement to judgment.
Cited by
A label shows how the later decision treated this one.
- Island Life Chiropractic Pain Care, PLLC v American Ind. Ins. Co. (2022 NY Slip Op 50901(U)) FollowedThe provider failed to establish jurisdiction over two defendants, while Good2Go Auto Insurance failed to rebut proof of service.
Similar decisions
- Great Wall Acupuncture v Liberty Mut. Ins. Co. (2007 NY Slip Op 51609(U))The provider's corporate officer failed to lay a business-record foundation for its summary judgment documents.
- Lexington Acupuncture, P.C. v MVAIC (2007 NY Slip Op 51604(U))The provider failed to establish a prima facie case because its employee's affidavit did not lay a business-records foundation.
- Great Wall Acupuncture v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50364(U))The provider's conclusory employee affidavit failed to establish the business-records foundation required for summary judgment.
- Boai Zhong Yi Acupuncture Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 51601(U))The provider's conclusory business-records affidavit failed to establish prima facie entitlement to summary judgment.
- First Help Acupuncture, P.C. v General Assur. Co. (2007 NY Slip Op 50859(U))The provider's employee failed to establish personal knowledge sufficient to admit the motion's supporting documents as business records.