June 4, 2007

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2007 NY Slip Op 51161(U))

Headnote

The court considered the motion for partial summary judgment by the plaintiffs in an action to recover assigned first-party no-fault benefits. The motion was supported by an affirmation of plaintiffs' counsel, an affidavit of plaintiffs' billing manager, and various documents annexed thereto. The defendant argued that the plaintiffs' assignors failed to cooperate with the investigation and that the plaintiffs failed to comply with requests for verification. The main issue decided was whether the plaintiffs had made a prima facie showing of their entitlement to summary judgment. The holding of the court was that the affidavit submitted by plaintiffs' billing manager was insufficient to establish personal knowledge of plaintiffs' practices and procedures, and therefore, the plaintiffs failed to make a prima facie showing of their entitlement to summary judgment. The court affirmed the order denying plaintiffs' motion for partial summary judgment.

Reported in New York Official Reports at Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2007 NY Slip Op 51161(U))

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2007 NY Slip Op 51161(U)) [*1]

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co.

2007 NY Slip Op 51161(U) [15 Misc 3d 144(A)]

Decided on June 4, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 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
2005-853 K C.

Art of Healing Medicine, P.C., Platinum Dental, P.C. and Points of Health Acupuncture, P.C. a/a/o Samuel Zakaryan, Lusik Yeghiazaryan and Irina Ergashbaeva, Appellants,
against
The Travelers Home and Marine Insurance Company a/k/a Travelers Property Casualty Corporation, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered April 5, 2005. The order denied plaintiffs’ motion for partial summary judgment.

Order affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs’ motion for partial summary judgment was supported by an affirmation of plaintiffs’ counsel, an affidavit of plaintiffs’ billing manager, and various documents
annexed thereto. In opposition to the motion, defendant asserted plaintiffs’ assignors’ failure to cooperate with defendant’s investigation and plaintiffs’ failure to comply with its requests for verification. The court below denied plaintiffs’ motion and the instant appeal ensued.

On appeal, defendant asserts that the affidavit by plaintiffs’ billing manager submitted in support of their motion, failed to lay a proper foundation for the documents annexed to plaintiffs’ moving papers and that, as a result, plaintiffs failed to establish a prima facie case. We agree. The affidavit submitted by plaintiffs’ billing manager was insufficient to establish that he [*2]possessed personal knowledge of plaintiffs’ practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiffs’ moving papers. Accordingly, plaintiffs failed to make a prima facie showing of their 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]). Consequently, plaintiffs’ motion for partial summary judgment was properly denied.

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

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: June 4, 2007