October 19, 2007

Allstate Social Work & Psychological Servs., P.L.L.C. v Utica Mut. Ins. Co. (2007 NY Slip Op 52042(U))

Headnote

The main issues considered in this case were whether plaintiff was entitled to partial summary judgment in the principal sum of $2,243.46 in an action to recover assigned first-party no-fault benefits, and whether defendant was entitled to summary judgment. The court below granted partial summary judgment to the plaintiff and denied the defendant's cross motion for summary judgment. On appeal, the defendant argued that the affidavit submitted by plaintiff's corporate officer did not lay a proper foundation for the admission of the documents annexed to plaintiff's moving papers, and therefore plaintiff failed to establish a prima facie case. The court agreed, finding that plaintiff failed to make a prima facie showing of its entitlement to summary judgment. The defendant also failed to demonstrate as a matter of law its entitlement to summary judgment, as it did not sufficiently establish that it mailed the verification requests and follow-up verification requests, or set forth a standard office practice or procedure designed to ensure that such items were properly addressed and mailed. As a result, the court properly denied defendant's cross motion for summary judgment. Therefore, the holding of this case was that plaintiff's motion for summary judgment was denied, and defendant's cross motion for summary judgment was affirmed.

Reported in New York Official Reports at Allstate Social Work & Psychological Servs., P.L.L.C. v Utica Mut. Ins. Co. (2007 NY Slip Op 52042(U))

Allstate Social Work & Psychological Servs., P.L.L.C. v Utica Mut. Ins. Co. (2007 NY Slip Op 52042(U)) [*1]

Allstate Social Work & Psychological Servs., P.L.L.C. v Utica Mut. Ins. Co.

2007 NY Slip Op 52042(U) [17 Misc 3d 133(A)]

Decided on October 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-1236 K C.

Allstate Social Work and Psychological Services, P.L.L.C. a/a/o Jose Duarte, Mirlene Janvier and Ziasha Richardson, Respondent,
against
Utica Mutual Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered May 25, 2006. The order granted plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment in the principal sum of $2,243.46 and denied defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary
judgment. The court below granted plaintiff’s motion to the extent of awarding it partial summary judgment in the principal sum of $2,243.46 and denied defendant’s cross motion. The instant appeal by defendant ensued.

On appeal, defendant contends that the affidavit by plaintiff’s employee, submitted in support of the motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. 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]).

Turning to the merits of defendant’s cross motion for summary judgment, the court below [*2]correctly denied same since defendant failed to demonstrate as a matter of law its entitlement to summary judgment. Defendant did not sufficiently establish that it mailed the verification requests and follow-up verification requests or set forth a standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Consequently, defendant did not demonstrate that plaintiff’s causes of action were premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). Further, to the extent defendant denied the claims based on fraud, the affidavits submitted by defendant were inadequate to establish as a matter of law “that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, the court below properly denied defendant’s cross motion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.