April 2, 2007

Alfa Med. Supplies, Inc. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50686(U))

Headnote

The main issue in this case was whether the provider, Alfa Medical Supplies, Inc., was entitled to recover assigned first-party no-fault benefits from Liberty Mutual Ins. Co. The court considered the fact that Alfa Medical Supplies, Inc. had filed a motion for summary judgment supported by an affirmation from plaintiff's counsel, an affidavit by an employee of plaintiff, and various documents. However, the court denied the motion on the ground that the employee's affidavit failed to set forth her job duties or the basis of her personal knowledge of plaintiff's billing procedures. As a result, the court held that plaintiff failed to make a prima facie showing of its entitlement to summary judgment. Therefore, the order denying plaintiff's motion for summary judgment was affirmed.

Reported in New York Official Reports at Alfa Med. Supplies, Inc. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50686(U))

Alfa Med. Supplies, Inc. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50686(U)) [*1]

Alfa Med. Supplies, Inc. v Liberty Mut. Ins. Co.

2007 NY Slip Op 50686(U) [15 Misc 3d 132(A)]

Decided on April 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 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
2006-499 K C.

Alfa Medical Supplies, Inc. a/a/o JULIO CESAR GIRALDO, Appellant,
against
Liberty Mutual Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 29, 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 an employee of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s employee 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 that plaintiff failed to make a prima facie showing because the affidavit of plaintiff’s employee failed to set forth her job duties or the basis of her personal knowledge, if any, of plaintiff’s billing procedures so as to lay a foundation for the admission of plaintiff’s bills as business records. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s employee was insufficient to establish that said employee possessed personal knowledge of plaintiff’s business 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 [*2]York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

In view of the foregoing, we reach no other issue.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 02, 2007