August 16, 2007
Boai Zhong Yi Acupuncture Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 51601(U))
https://www.beynensonlaw.com/case-law/boai-zhong-yi-acupuncture-servs-p-c-v-allstate-ins-co-2007-ny-slip-op-51601u/
- Decided
- August 16, 2007
- Citation
- 2007 NY Slip Op 51601(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 Boai Zhong Yi Acupuncture Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 51601(U))
| Boai Zhong Yi Acupuncture Servs., P.C. v Allstate Ins. Co. |
| 2007 NY Slip Op 51601(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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2005-1943 K C.
against
Allstate Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 16, 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, 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 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 on the ground, inter alia, that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s corporate officer was legally insufficient. The instant appeal by plaintiff ensued.
Inasmuch as 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 judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see 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, plaintiff’s motion for summary judgment was properly denied.
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 needed to admit 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
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 Travelers Ins. Co. (2006 NY Slip Op 52516(U))The provider failed to establish submission of its claim, and the insurer's delay letter did not identify the claim at issue.
- N.Y.Q. Acupuncture, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 51614(U))The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-record foundation.
- Gentle Care Acupuncture, P.C. v Allstate Ins. Co. (2007 NY Slip Op 52334(U))The provider failed to establish its prima facie case because its employee's affidavit did not lay a business records foundation.
- Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51288(U))A billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor.
- W.H.O. Acupuncture, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50615(U))The provider's summary judgment showing failed because its officer's affidavit did not establish a business-records foundation.