September 10, 2008

Amaze Med. Supply, Inc. v Allstate Ins. Co. (2008 NY Slip Op 51866(U))

https://www.beynensonlaw.com/case-law/amaze-med-supply-inc-v-allstate-ins-co-2008-ny-slip-op-51866u/

Court: Appellate Term, Second Department
Decided: September 10, 2008
Citation: 2008 NY Slip Op 51866(U) · 20 Misc 3d 145(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

Amaze Med. Supply, Inc. v Allstate Ins. Co., 20 Misc 3d 145(A), 2008 NY Slip Op 51866(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 affidavit did not lay a business-records foundation. The provider sought summary judgment on claims for assigned first-party no-fault benefits. Its officer and medical billing manager submitted an affidavit that did not establish personal knowledge of the provider's practices and procedures sufficient to authenticate the documents attached to the motion. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed the denial of the provider's motion. The deficient affidavit prevented the provider from meeting its initial summary judgment burden.

Reported in New York Official Reports at Amaze Med. Supply, Inc. v Allstate Ins. Co. (2008 NY Slip Op 51866(U))

[*1]

Amaze Med. Supply, Inc. v Allstate Ins. Co.

2008 NY Slip Op 51866(U) [20 Misc 3d 145(A)]

Decided on September 10, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1293 K C.

Amaze Medical Supply, Inc. a/a/o Reynaldo A. Urena, Maranella Bufalino and Stanislav Kikot, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 27, 2007. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below denied plaintiff’s motion on the ground that plaintiff’s affidavit was insufficient. This appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff’s officer and medical billing manager was insufficient to establish that said person 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-385 [2005] [“A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent’s prima facie burden”]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: September 10, 2008

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: claim forms not shown admissible as business records / merits of claim not proved

Held the provider failed its prima facie case because its officer and billing manager's affidavit did not show personal knowledge of the provider's practices sufficient to admit the annexed documents as business records.

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, 208 (this one included) are in the same category.

Cited in this decision

Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.

Similar decisions

Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50211(U))The provider established entitlement to summary judgment by proving submission of complete claims that were not paid or denied within 30 days.
Amaze Med. Supply, Inc. v Travelers Prop. Cas. (2009 NY Slip Op 51357(U))The provider's summary judgment motion was denied because its biller's affidavit did not establish the admissibility of the annexed documents.
Fair Price Med. Supply Corp. v Allstate Ins. Co. (2007 NY Slip Op 50608(U))The provider's officer affidavit failed to establish a business-records foundation, defeating its prima facie summary judgment showing.
A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50671(U))The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation.
Amaze Med. Supply Inc. v Allstate Ins. Co. (2004 NY Slip Op 50447(U))The provider's signed postal ledger and president's affidavit established mailing, and the insurer failed to raise a triable issue of timely denial.