April 3, 2007

S.P. Med. Ctr. v Trumbull Ins. Co. (2007 NY Slip Op 50692(U))

https://www.beynensonlaw.com/case-law/s-p-med-ctr-v-trumbull-ins-co-2007-ny-slip-op-50692u/

Court
Appellate Term, Second Department
Decided
April 3, 2007
Citation
2007 NY Slip Op 50692(U) · 15 Misc 3d 133(A)
Posture
Summary judgment
Outcome
Split result
Issues
Provider's prima facie case Jurisdiction and service
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
S.P. Med. Ctr. v Trumbull Ins. Co., 15 Misc 3d 133(A), 2007 NY Slip Op 50692(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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's summary judgment motion failed because its officer's affidavit did not establish a business-records foundation. The Appellate Term, Second Department, reversed the judgment, vacated the grant of summary judgment, and denied the provider's motion. The affidavit did not establish the officer's personal knowledge of the provider's practices and procedures sufficient to admit the supporting documents. The court nevertheless upheld denial of the insurer's cross motion to dismiss for lack of subject matter jurisdiction. Although the complaint grouped claims assigned by three different assignors under one cause of action, each claim was separate and within the Civil Court's $25,000 monetary limit under CCA 202 and 211.

Reported in New York Official Reports at S.P. Med. Ctr. v Trumbull Ins. Co. (2007 NY Slip Op 50692(U))

[*1]
S.P. Med. Ctr. v Trumbull Ins. Co.
2007 NY Slip Op 50692(U) [15 Misc 3d 133(A)]
Decided on April 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 3, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-319 K C.
S.P. Medical Center a/a/o LUIS BONIFACIO RAMOS HUMBERTO and JOSE DIAZ, Respondent,

against

Trumbull Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered November 18, 2005, deemed an appeal from a judgment entered on January 3, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 18, 2005 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion to dismiss the complaint, awarded plaintiff the sum of $55,272.72.

Judgment reversed without costs, the branch of the November 18, 2005 order which granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to dismiss the complaint for lack of subject matter jurisdiction. The court below granted plaintiff’s motion and denied defendant’s cross motion. The instant appeal by defendant ensued.

While plaintiff listed in its complaint under the heading “First Cause of Action” all three of its claims for no-fault benefits, the recovery of which was assigned to it by three different assignors, it is clear that all three claims were separate and distinct and each was within the Civil Court’s monetary jurisdictional limit of $25,000 (CCA 202, 211; see Karp v Manhattan Mtge. Co., Inc., 11 Misc 3d 142[A], 2006 NY Slip Op 50699[U] [App Term, 1st Dept]). Therefore, the court below properly denied defendant’s cross motion to dismiss the action for lack of subject [*2]matter jurisdiction.

On appeal, defendant contends that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, 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 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]). Consequently, the judgment is reversed, the branch of the order entered November 18, 2005 which granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 03, 2007

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