July 22, 2010

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co. (2010 NY Slip Op 51339(U))

Headnote

The court considered a motion for summary judgment in a case brought by Axis Chiropractic, PLLC as assignee of Ricargo Herrera against GEICO General Insurance Company to recover assigned first-party no-fault benefits. The main issue decided was whether the plaintiff had made a prima facie showing of entitlement to summary judgment, with the court ultimately holding that the plaintiff failed to do so. The court found that the affidavit submitted in support of the motion for summary judgment did not demonstrate personal knowledge of the plaintiff's business practices and procedures, therefore rendering it legally insufficient. As a result, the court affirmed the denial of the plaintiff's motion for summary judgment. No other issues were considered by the court in this case.

Reported in New York Official Reports at Axis Chiropractic, PLLC v GEICO Gen. Ins. Co. (2010 NY Slip Op 51339(U))

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co. (2010 NY Slip Op 51339(U)) [*1]

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co.

2010 NY Slip Op 51339(U) [28 Misc 3d 133(A)]

Decided on July 22, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 22, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-1174 K C.

Axis Chiropractic, PLLC as assignee of Ricargo Herrera, Appellant,
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered March 13, 2009. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment, finding that “plaintiff’s affidavit was legally insufficient.” This appeal by plaintiff ensued.

Plaintiff’s motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the documents submitted in support of plaintiff’s motion were admissible pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50065[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the order is affirmed.

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

Weston, J.P., Golia and Steinhardt, JJ., concur. [*2]
Decision Date: July 22, 2010