February 13, 2009

Infinity Health Prods., Ltd. v Country-Wide Ins. Co. (2009 NY Slip Op 50239(U))

https://www.beynensonlaw.com/case-law/infinity-health-prods-ltd-v-country-wide-ins-co-2009-ny-slip-op50239u/

Court
Appellate Term, Second Department
Decided
February 13, 2009
Citation
2009 NY Slip Op 50239(U) · 22 Misc 3d 134(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Provider's prima facie case
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
Infinity Health Prods., Ltd. v Country-Wide Ins. Co., 22 Misc 3d 134(A), 2009 NY Slip Op 50239(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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's supporting affidavit failed to establish a business-record foundation for the documents submitted on its summary judgment motion. The Appellate Term, Second Department, reversed the judgment for the provider, vacated the order granting summary judgment, and denied the motion. The affiant served as both billing manager and corporate officer, but the affidavit did not sufficiently establish personal knowledge of the provider's practices and procedures to support admission of the annexed documents as business records. The provider therefore failed to demonstrate prima facie entitlement to judgment. Although the insurer had opposed the motion on medical-necessity grounds, the appellate disposition rested on the provider's deficient evidentiary foundation.

Reported in New York Official Reports at Infinity Health Prods., Ltd. v Country-Wide Ins. Co. (2009 NY Slip Op 50239(U))

[*1]
Infinity Health Prods., Ltd. v Country-Wide Ins. Co.
2009 NY Slip Op 50239(U) [22 Misc 3d 134(A)]
Decided on February 13, 2009
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.
Decided on February 13, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., WESTON PATTERSON and STEINHARDT, JJ
2008-175 Q C.
Infinity Health Products, Ltd. as assignee of POLARD GILLIAN, Respondent,

against

Country-Wide Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 21, 2007. The judgment, entered pursuant to an order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,217.50.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued, inter alia, that there was an issue of fact as to the medical necessity of the supplies furnished by plaintiff. By order dated August 22, 2007, the court granted plaintiff’s motion for summary judgment. Judgment was subsequently entered pursuant to the order. The instant appeal by defendant ensued.

On appeal, defendant argues that the affidavit of plaintiff’s billing manager and corporate officer, submitted in support of plaintiff’s motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish its prima facie case. We agree. The affidavit submitted by plaintiff’s billing manager and corporate officer 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 Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists, 2007], affd 55 AD3d 644 [2008]; Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d [*2]44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.
Decision Date: February 13, 2009

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