March 26, 2007

W.H.O. Acupuncture, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50615(U))

https://www.beynensonlaw.com/case-law/w-h-o-acupuncture-p-c-v-allstate-ins-co-2007-ny-slip-op-50615u/

Court
Appellate Term, Second Department
Decided
March 26, 2007
Citation
2007 NY Slip Op 50615(U) · 15 Misc 3d 129(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Provider's prima facie case
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
W.H.O. Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 129(A), 2007 NY Slip Op 50615(U) (App Term, 2d Dept, 9th & 10th 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 showing failed because its officer's affidavit did not establish a business-records foundation. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment on assigned no-fault claims. The officer's conclusory assertion that the attached documents were business records did not establish personal knowledge of the provider's practices and procedures sufficient to admit them. The court also dismissed as abandoned the separate appeal from denial of the provider's motion to vacate the prior order and renew its summary judgment motion, because the provider raised no issue concerning that ruling.

Reported in New York Official Reports at W.H.O. Acupuncture, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50615(U))

[*1]
W.H.O. Acupuncture, P.C. v Allstate Ins. Co.
2007 NY Slip Op 50615(U) [15 Misc 3d 129(A)]
Decided on March 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


PRESENT: : RUDOLPH, P.J., TANENBAUM and LaCAVA, JJ
2006-700 N C.
W.H.O. ACUPUNCTURE, P.C. a/a/o Samantha Y. Bryson, Appellant,

against

ALLSTATE INSURANCE CO., Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Randy Sue Marber, J.), dated September 30, 2005, and from an order of the same court, entered February 22, 2006. The order dated September 30, 2005, insofar as appealed from, denied plaintiff’s motion for summary judgment. The order entered February 22, 2006 denied plaintiff’s motion to vacate the order dated September 30, 2006 and to renew plaintiff’s motion for summary judgment.

Appeal from order entered February 22, 2006 dismissed.

Order dated September 30, 2005, insofar as appealed from, 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 an 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. By order dated September 30, 2005, 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 failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein. Plaintiff appeals from the denial of its motion for summary judgment. Plaintiff also appeals from the order entered February 22, 2006 which denied its motion to vacate the September 30, 2005 order and to renew [*2]its motion for summary judgment.

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 proper foundation for the admissibility, 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 Fortune Med., P.C. v Allstate Ins. Co., ____ Misc 3d ____[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th 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 order dated September 30, 2005 properly denied plaintiff’s motion for summary judgment.

To the extent plaintiff also appeals from the order entered February 22, 2006, plaintiff has raised no issue with respect thereto and, thus, said appeal is dismissed as abandoned.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 26, 2007

Similar decisions