January 4, 2008
Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50087(U))
https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-progressive-cas-ins-co-2008-ny-slip-op50087u/
- Decided
- January 4, 2008
- Citation
- 2008 NY Slip Op 50087(U) · 18 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- 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 Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50087(U))
| Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. |
| 2008 NY Slip Op 50087(U) [18 Misc 3d 132(A)] |
| Decided on January 4, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1661 K C.
against
Progressive Casualty Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered June 22, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.
Order, insofar as appealed from, affirmed with $10 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion
for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by
an officer of plaintiff, and various documents annexed thereto. The affidavit executed by
plaintiff’s officer stated in a conclusory manner that the
documents attached to plaintiff’s motion papers were plaintiff’s business records. The court
below denied the motion, finding that defendant provided proof of timely verification requests
and of a timely denial based upon a peer review. This appeal by plaintiff ensued.
Since the affidavit submitted by plaintiff’s officer was insufficient to establish that said officer 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 (Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.
Weston Patterson, J.P., Golia and Belen, JJ., concur.
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: claim forms not shown admissible as business records / merits of claim not proved
Held the provider failed its prima facie burden because its officer's conclusory affidavit did not show personal knowledge of the provider's practices to lay a business-records foundation for the annexed documents.
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
A label shows how this decision treated the case it cites.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe 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
- Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50604(U))The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation.
- Delta Diagnostic Radiology, P.C. v Statewide Ins. Co. (2007 NY Slip Op 50677(U))The provider's officer affidavit failed to establish a business-records foundation, leaving its prima facie summary judgment showing deficient.
- Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 50238(U))The provider's conclusory corporate officer affidavit did not establish a business-records foundation for summary judgment.
- Delta Diagnostic Radiology, P.C. v General Assur. Co. (2007 NY Slip Op 51616(U))The provider failed to establish a prima facie case because its corporate officer did not lay a foundation for the attached business records.
- Delta Diagnostic Radiology, P.C. v Unitrin Advantage Ins. Co. (2008 NY Slip Op 51854(U))The provider's officer failed to establish personal knowledge sufficient to lay a business-records foundation for summary judgment.