September 10, 2008
Amaze Med. Supply, Inc. v Allstate Ins. Co. (2008 NY Slip Op 51866(U))
https://www.beynensonlaw.com/case-law/amaze-med-supply-inc-v-allstate-ins-co-2008-ny-slip-op-51866u/
- Decided
- September 10, 2008
- Citation
- 2008 NY Slip Op 51866(U) · 20 Misc 3d 145(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- 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 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) [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| This opinion is uncorrected and will not be published in the printed Official Reports. |
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.
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
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 failed its prima facie case because its officer and billing manager's affidavit did not show personal knowledge of the provider's practices sufficient to admit the annexed documents as business records.
Of the 1,065 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
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
Similar decisions
- Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50211(U))The provider established entitlement to summary judgment by proving submission of complete claims that were not paid or denied within 30 days.
- Amaze Med. Supply, Inc. v Travelers Prop. Cas. (2009 NY Slip Op 51357(U))The provider's summary judgment motion was denied because its biller's affidavit did not establish the admissibility of the annexed documents.
- Fair Price Med. Supply Corp. v Allstate Ins. Co. (2007 NY Slip Op 50608(U))The provider's officer affidavit failed to establish a business-records foundation, defeating its prima facie summary judgment showing.
- A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50671(U))The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation.
- Amaze Med. Supply Inc. v Allstate Ins. Co. (2004 NY Slip Op 50447(U))The provider's signed postal ledger and president's affidavit established mailing, and the insurer failed to raise a triable issue of timely denial.