July 12, 2007

Bronxborough Med., P.C. v Travelers Ins. Co. (2007 NY Slip Op 51485(U))

https://www.beynensonlaw.com/case-law/bronxborough-med-p-c-v-travelers-ins-co-2007-ny-slip-op-51485u/

Court
Appellate Term, Second Department
Decided
July 12, 2007
Citation
2007 NY Slip Op 51485(U) · 16 Misc 3d 132(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Contrasted (cf., but see) in 1 later decision (see Cited by)
Issues
Provider's prima facie case Discovery and procedure
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
Bronxborough Med., P.C. v Travelers Ins. Co., 16 Misc 3d 132(A), 2007 NY Slip Op 51485(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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.

The provider failed to establish prima facie entitlement to summary judgment through admissible business records. Its corporate officer's affidavit conclusorily identified the attachments as business records but did not establish personal knowledge of the provider's practices and procedures sufficient to lay a foundation for admission. The Appellate Term, Second Department, affirmed the denial of the provider's motion for assigned first-party no-fault benefits. A later order granting reargument and substantially adhering to the original determination did not affect the appeal under CPLR 5517 (a). The court declined to review that later order under CPLR 5517 (b) because the appellate record did not contain the motion papers on which it was based.

Reported in New York Official Reports at Bronxborough Med., P.C. v Travelers Ins. Co. (2007 NY Slip Op 51485(U))

[*1]
Bronxborough Med., P.C. v Travelers Ins. Co.
2007 NY Slip Op 51485(U) [16 Misc 3d 132(A)]
Decided on July 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS


PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2006-657 Q C. ——————————————————————————————————————————————- x
Bronxborough Medical, P.C. as assignee of Enith Colon, Appellant,

against

Travelers Insurance Co., Respondent. ——————————————————————————————————————————————- x

Appeal from an order of the Civil Court of the City of New York, Queens County (Edgar G. Walker, J.), entered December 9, 2004. The order denied plaintiff’s motion for summary judgment and awarded defendant $50 costs.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that plaintiff’s moving papers did not proffer facts in admissible form so as to establish plaintiff’s prima facie entitlement to judgment as a matter of law. The court denied plaintiff’s motion on the ground that the affidavit of plaintiff’s corporate officer was legally insufficient to establish plaintiff’s prima facie case and awarded defendant $50 costs. The instant appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s corporate officer was insufficient to establish [*2]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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see 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.

To the extent the court awarded defendant costs in the sum of $50, CCA 1906 (a) vests the court with the discretion to impose costs not in excess of $50 upon the granting or denying of a motion. Under the circumstances presented, the imposition of costs was a not an improvident exercise of the court’s discretion (see PDG Psychological P.C. v Eveready Ins. Co., 13 Misc 3d 143[A], 2006 NY Slip Op 52305[U] [App Term, 2d & 11th Jud Dists]).

We note that during oral argument, this court was advised that plaintiff moved for reargument of the subject motion, and the court below, in a subsequent decision/order dated November 16, 2006, granted reargument, and upon reargument, substantially adhered to its original determination. Thus, pursuant to CPLR 5517 (a), this appeal is unaffected by the subsequent order. Moreover, we have not reviewed the subsequent decision/order pursuant to CPLR 5517 (b) because the record on appeal did not include the motion papers upon which the decision/order was based (see Matter of Donato v Board of Educ. of Plainview-Old Bethpage Cent. School Dist., 286 AD2d 388 [2001]; Matter of Merendino v Herman, 15 AD2d 818 [1962]; NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2004]).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: July 12, 2007

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