September 4, 2007

Astoria Quality Med. Supply v Allstate Ins. Co. (2007 NY Slip Op 51977(U))

Headnote

The relevant facts the court considered in this case were that Astoria Quality Medical Supply, acting on behalf of certain individuals, was seeking to recover first-party no-fault benefits from Allstate Insurance Company. Astoria Quality Medical Supply moved for summary judgment, which was denied by the lower court. On appeal, the main issue decided was whether Astoria Quality Medical Supply had presented sufficient evidence to establish a prima facie case for summary judgment. The holding of the court was that the affidavit submitted by Astoria's employee was insufficient to establish that the employee had personal knowledge of the company's practices and procedures, and therefore failed to lay a foundation for the admission of the documents annexed to the moving papers. As a result, Astoria Quality Medical Supply failed to make a prima facie showing of its entitlement to summary judgment, and the lower court's order was affirmed.

Reported in New York Official Reports at Astoria Quality Med. Supply v Allstate Ins. Co. (2007 NY Slip Op 51977(U))

Astoria Quality Med. Supply v Allstate Ins. Co. (2007 NY Slip Op 51977(U)) [*1]

Astoria Quality Med. Supply v Allstate Ins. Co.

2007 NY Slip Op 51977(U) [17 Misc 3d 130(A)]

Decided on September 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 4, 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
2005-582 K C.

Astoria Quality Medical Supply a/a/o ALEKSANDR CHERVYAKPV, ANELYNA ASHEROVA, MILTON VIVAS, SABITA MOHAN and PAUL LEROY, Appellant,
against
Allstate Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered February 10, 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 moved for summary judgment. The court below denied the motion and the instant appeal ensued.

On appeal, defendant asserts that the affidavit of 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 employee was insufficient to establish that said employee 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]). [*2]

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007