August 16, 2007

Bath Med. Supply, Inc. v Allstate Ins. Co. (2007 NY Slip Op 51602(U))

Headnote

The main issues in this case were whether the affidavit submitted by the plaintiff's corporate officer laid a proper foundation for the admission of the documents annexed to the plaintiff's moving papers, and whether the plaintiff had made a prima facie showing of its entitlement to summary judgment in an action to recover assigned first-party no-fault benefits. The court considered the insufficiency of the affidavit to establish that the officer possessed personal knowledge of the plaintiff's practices and procedures. The court ultimately held that the plaintiff's motion for summary judgment was properly denied because the affidavit failed to lay a proper foundation for the admission of the documents as business records, and thus plaintiff failed to make a prima facie showing of its entitlement to summary judgment. Therefore, the order of the Civil Court denying the plaintiff's motion for summary judgment was affirmed.

Reported in New York Official Reports at Bath Med. Supply, Inc. v Allstate Ins. Co. (2007 NY Slip Op 51602(U))

Bath Med. Supply, Inc. v Allstate Ins. Co. (2007 NY Slip Op 51602(U)) [*1]

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

2007 NY Slip Op 51602(U) [16 Misc 3d 135(A)]

Decided on August 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-1993 K C.

Bath Medical Supply, Inc., a/a/o Maria Cruz, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered November 18, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In an 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 by plaintiff ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate officer,
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 corporate officer was insufficient to establish that said officer 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 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, plaintiff’s motion for summary judgment was properly denied. [*2]

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007