September 10, 2008

Amaze Med. Supply, Inc. v Allstate Ins. Co. (2008 NY Slip Op 51866(U))

Headnote

The court considered a motion for summary judgment in a case by a provider to recover assigned first-party no-fault benefits. The court denied the motion on the ground that the affidavit submitted by the plaintiff's officer and medical billing manager was insufficient to establish personal knowledge of plaintiff's practices and procedures, so as to lay a foundation for the admission of the documents annexed to plaintiff's moving papers as business records. As a result, the plaintiff failed to make a prima facie showing of its entitlement to summary judgment. The main issue decided was whether the plaintiff had provided sufficient evidence to establish its entitlement to summary judgment in a case to recover assigned first-party no-fault benefits. The holding of the court was that the plaintiff's affidavit was insufficient to make a prima facie showing of its entitlement to summary judgment, and therefore the order denying plaintiff's motion for summary judgment was affirmed.

Reported in New York Official Reports at Amaze Med. Supply, Inc. v Allstate Ins. Co. (2008 NY Slip Op 51866(U))

Amaze Med. Supply, Inc. v Allstate Ins. Co. (2008 NY Slip Op 51866(U)) [*1]

Amaze Med. Supply, Inc. v Allstate Ins. Co.

2008 NY Slip Op 51866(U) [20 Misc 3d 145(A)]

Decided on September 10, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1293 K C.

Amaze Medical Supply, Inc. a/a/o Reynaldo A. Urena, Maranella Bufalino and Stanislav Kikot, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 27, 2007. 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 moved for summary judgment. The court below denied plaintiff’s motion on the ground that plaintiff’s affidavit was insufficient. This appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff’s officer and medical billing manager was insufficient to establish that said person 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-385 [2005] [“A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent’s prima facie burden”]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: September 10, 2008