March 28, 2007
Downtown Acupuncture, P.C. v Geico Gen. Ins. Co. (2007 NY Slip Op 50660(U))
https://www.beynensonlaw.com/case-law/downtown-acupuncture-p-c-v-geico-gen-ins-co-2007-ny-slip-op-50660u/
- Decided
- March 28, 2007
- Citation
- 2007 NY Slip Op 50660(U) · 15 Misc 3d 130(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 Downtown Acupuncture, P.C. v Geico Gen. Ins. Co. (2007 NY Slip Op 50660(U))
| Downtown Acupuncture, P.C. v Geico Gen. Ins. Co. |
| 2007 NY Slip Op 50660(U) [15 Misc 3d 130(A)] |
| Decided on March 28, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., WESTON PATTERSON and RIOS, JJ
2005-1154 K C.
against
GEICO General Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered March 24, 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 from plaintiff s president and various documents annexed thereto. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s president failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. The court below denied the motion on the ground that defendant raised an issue of fact as to whether the injuries arose from a covered incident. Plaintiff appeals from the denial of its motion for summary judgment.
Inasmuch as the affidavit submitted by plaintiff’s president was insufficient to establish that she possessed personal knowledge of plaintiff’s practices and procedures so as to lay a [*2]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 (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 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 showing because its president's affidavit did not establish personal knowledge of the provider's practices and procedures 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
- 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.
- Lexington Acupuncture, P.C. v GEICO Ins. Co. (2008 NY Slip Op 50519(U))The insurer's founded belief that the injuries did not arise from an insured incident defeated the provider's summary judgment motion.
- First Help Acupuncture, P.C. v General Assur. Co. (2007 NY Slip Op 50859(U))The provider's employee failed to establish personal knowledge sufficient to admit the motion's supporting documents as business records.
- City Wide Social Work & Psychological Servs., PLLC v GEICO Gen. Ins. Co. (2007 NY Slip Op 50603(U))The provider's employee affidavits failed to establish a business-records foundation for the claim at issue on appeal.
- Walter Karpinski Acupuncture, P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 52280(U))The provider failed to establish a prima facie case through an officer's conclusory assertion that attached documents were business records.