August 16, 2007
Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 51608(U))
https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-nationwide-mut-ins-co-2007-ny-slip-op-51608u/
- Decided
- August 16, 2007
- Citation
- 2007 NY Slip Op 51608(U) · 16 Misc 3d 135(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 Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 51608(U))
| Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. |
| 2007 NY Slip Op 51608(U) [16 Misc 3d 135(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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2006-557 K C.
against
Nationwide Mutual Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered November 10, 2005. 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, the court denied plaintiff’s motion for summary judgment finding that there was an issue of fact whether plaintiff’s assignor attended duly requested examinations under oath and an independent medical examination. The instant appeal by plaintiff ensued.
On appeal, defendant asserts that the affidavit by plaintiff’s corporate officer, submitted in support of the 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 a prima facie case. We agree. 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. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see 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]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). [*2]Consequently, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.
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 affidavit did not establish personal knowledge of its practices to lay a foundation for admitting the annexed documents as business records.
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
- Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U))The insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal.
- 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
- Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50939(U))The provider failed to establish a prima facie case because its officer's affidavit lacked a sufficient business-records foundation.
- Vista Surgical Supplies, Inc. v Progressive Cas. (2007 NY Slip Op 50695(U))The provider's summary judgment proof failed because its corporate officer did not establish a foundation for the attached business records.
- Vista Surgical Supplies, Inc. v General Assur. Co. (2007 NY Slip Op 50613(U))The medical-supply provider failed to establish a prima facie case because its officer's affidavit lacked a business-records foundation.
- Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2008 NY Slip Op 50524(U))The provider failed to establish its prima facie case because its officer's affidavit lacked a foundation for the billing records.
- Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2007 NY Slip Op 50502(U))The provider's officer failed to establish personal knowledge sufficient to admit the motion's supporting documents as business records.