August 16, 2007
N.Y.Q. Acupuncture, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 51614(U))
https://www.beynensonlaw.com/case-law/n-y-q-acupuncture-p-c-v-american-tr-ins-co-2007-ny-slip-op-51614u/
- Decided
- August 16, 2007
- Citation
- 2007 NY Slip Op 51614(U) · 16 Misc 3d 136(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 N.Y.Q. Acupuncture, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 51614(U))
| N.Y.Q. Acupuncture, P.C. v American Tr. Ins. Co. |
| 2007 NY Slip Op 51614(U) [16 Misc 3d 136(A)] |
| Decided on August 16, 2007 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : PESCE, P.J., RIOS and BELEN, JJ
2006-919 K C.
against
American Transit Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered April 7, 2006. 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’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by
plaintiff’s corporate officer failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The court denied plaintiff’s motion, finding that there was an issue of fact. The instant appeal by plaintiff ensued.
Since the affidavit submitted by plaintiff’s corporate 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 [*2]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.
In light of the foregoing, we reach no other issue.
Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007
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 case because its officer's conclusory affidavit did not establish personal knowledge of its practices to lay a foundation for admitting the annexed documents as business records.
Of the 1,063 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
- 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.
- A.M. Med. Servs., P.C. v Deerbrook Ins. Co. (2007 NY Slip Op 51610(U))The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-record foundation.
- A.T. Med., P.C. v American Tr. Ins. Co. (2008 NY Slip Op 51853(U))The provider failed to prove claim submission or lay a business-records foundation for its summary judgment motion.
- 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.
- Great Wall Acupuncture v American Tr. Ins. Co. (2007 NY Slip Op 50538(U))The provider failed to establish a business-records foundation because its employee's affidavit did not show the necessary personal knowledge.