March 26, 2007
All Mental Care Medicine, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50612(U))
https://www.beynensonlaw.com/case-law/all-mental-care-medicine-p-c-v-allstate-ins-co-2007-ny-slip-op-50612u/
- Decided
- March 26, 2007
- Citation
- 2007 NY Slip Op 50612(U) · 15 Misc 3d 129(A)
- Posture
- Default or vacatur
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 2 later decisions (see Cited by)
- 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 All Mental Care Medicine, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50612(U))
| All Mental Care Medicine, P.C. v Allstate Ins. Co. |
| 2007 NY Slip Op 50612(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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-483 K C.
against
ALLSTATE INSURANCE COMPANY, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered February 1, 2006. The order denied plaintiff’s renewed motion for leave to enter a default judgment.
Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for an order granting it leave to enter a default judgment upon defendant’s failure to appear or answer the complaint. The motion was denied with leave to renew upon submission of a proper affidavit by plaintiff. Thereafter, plaintiff renewed its motion with what it deemed to be a sufficient affidavit. The motion court
again denied the motion, on the ground that plaintiff did not adequately establish submission of the claim forms. The instant appeal ensued.
CPLR 3215 (f) requires that upon any application for a default judgment, the applicant must, inter alia, file “proof of the facts constituting the claim, the default and the amount due by affidavit made by the party.” The affidavit in support of the motion must be made upon personal knowledge of the facts (see Fiorino v Yung Poon Yung, 281 AD2d 513 [2001]; Finnegan v Sheahan, 269 AD2d 491 [2000]) and must establish a prima facie case (Matter of Dyno v Rose, 260 AD2d 694 [1999]). If the court determines that the affidavit fails to establish a prima facie case, the applicant is not entitled to the requested relief, even on default (id. at 698). [*2]
In the instant action, the affidavit of plaintiff’s corporate officer, which plaintiff submitted on its renewed motion, 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 motion papers. Accordingly, plaintiff did not establish a prima facie case (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). In any event, even if the affidavit had laid a proper foundation for the admissibility of the annexed documents, the court below correctly found that plaintiff failed to establish that it submitted the claim forms to defendant (see Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50473[U] [App Term, 2d & 11th Jud Dists]; see also PDG Psychological P.C. v Progressive Cas. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51432[U] [App Term, 2d & 11th Jud Dists]).
Accordingly, since plaintiff did not demonstrate a prima facie entitlement to judgment as a matter of law, the court below properly denied plaintiff’s renewed motion for leave to enter a default judgment.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 26, 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 made no prima facie case on its default-judgment motion because its officer could not lay a business-records foundation for the annexed documents and, in any event, submission of the claim forms was not shown.
Of the 1,063 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.
- Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 50473(U)) FollowedThe claimants failed to establish submission of their claims through mailing proof or the insurer's discrepant denial forms.
- PDG Psychological P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51432(U))The provider obtained summary judgment on one claim because the insurer failed to prove timely denial; two claims lacked submission proof.
Cited by
A label shows how the later decision treated this one.
- Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford (2010 NY Slip Op 50889(U)) FollowedThe provider's default judgment motion lacked personal-knowledge proof of its claim and an admissible business-records foundation.
- Ventrudo v GEICO Ins. Co. (2012 NY Slip Op 52180(U)) FollowedThe provider failed to establish entitlement to a default judgment, and the insurer failed to justify acceptance of its late answer.
Similar decisions
- All Mental Care Medicine, P.C. v Travelers Indem. Co. (2007 NY Slip Op 50537(U))The provider's officer failed to establish personal knowledge sufficient to admit the supporting documents as business records.
- A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50492(U))The provider failed to establish a business-records foundation and could not appeal discovery relief entered on its default.
- Capri Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50611(U))The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation.
- Dan Med., P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 50602(U))The provider's summary judgment showing failed for lack of a business-records foundation, and its discovery appeal concerned a default order.
- RLC Med., P.C. v Allstate Ins. Co. (2009 NY Slip Op 51131(U))The provider's billing manager failed to establish admissible business records, defeating the provider's motion for summary judgment.