• 347-746-6001
  • contact@beynensonlaw.com
Beynenson Law
Beynenson Law
  • Services
    • Search
    • No-Fault AI
    • New Decisions
    • Legal Questions
    • No-Fault Regulations
    • Arbitrator Scorecard
    • Award Volume
    • Arbitrator / Carrier Data
    • Provider / Carrier Data
    • Provider / Attorney Data
    • Arbitration Pro Extension
  • About Us
  • Contact
  • East Hampton, New York

  • 347-746-6001
  • contact@beynensonlaw.com
  • Services
    • Search
    • No-Fault AI
    • New Decisions
    • Legal Questions
    • No-Fault Regulations
    • Arbitrator Scorecard
    • Award Volume
    • Arbitrator / Carrier Data
    • Provider / Carrier Data
    • Provider / Attorney Data
    • Arbitration Pro Extension
  • About Us
  • Contact
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/

Court
Appellate Term, Second Department
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)
Issues
Provider's prima facie case
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co., 26 Misc 3d 135(A), 2010 NY Slip Op 50146(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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.

The provider failed to establish its prima facie case because its owner's affidavit was unsigned and counsel's affirmation was insufficient. The provider moved for summary judgment to recover assigned no-fault benefits, submitting counsel's affirmation, the unsigned affidavit, and supporting documents. The insurer challenged the affidavit's sufficiency. The Appellate Term, Second Department, affirmed the denial of the provider's motion because the unsigned affidavit was not evidence in admissible form and counsel's affirmation could not establish the required prima facie showing.

Reported in New York Official Reports at WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co. (2010 NY Slip Op 50146(U))

[*1]
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.
Decided on January 29, 2010

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.
WJJ Acupuncture, P.C. a/a/o MENDEL DAVIDOVICH, Appellant,

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.

Claimant's prima facie case on motions

Open the full map

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.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 81
  • Appellate TermApp Term 843
  • Trial courtsTrial 139
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 16 decisions (13 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 15 decisions (9 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

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.
Beynenson Law

Tech-driven New York no-fault collections for healthcare providers.

About the firm

Contact

  • East Hampton, New York

  • 347-746-6001
  • contact@beynensonlaw.com
  • Contact form

Case Law

  • Search
  • No-Fault AI
  • New Decisions
  • Legal Questions
  • No-Fault Regulations

Arbitration Data

  • Arbitrator Scorecard
  • Award Volume
  • Arbitrator / Carrier Data
  • Provider / Carrier Data
  • Provider / Attorney Data
  • Arbitration Pro Extension

©2026 The Beynenson Law Firm, PC. Terms of Use Privacy Policy

Site by khrystev.dev

Attorney Advertising. Prior results do not guarantee a similar outcome. This website provides general information, not legal advice, and using it does not create an attorney-client relationship. Do not send confidential information through this site.