June 29, 2009

Careplus Med. Supply, Inc. v Allstate Ins. Co. (2009 NY Slip Op 51398(U))

Headnote

The court considered the fact that Careplus Medical Supply, Inc. was seeking to recover assigned first-party no-fault benefits from Allstate Insurance Company. Careplus moved for summary judgment, but Allstate argued that Careplus did not make a prima facie showing of entitlement to judgment. The court denied Careplus's motion, stating that the affidavit by Careplus's billing manager did not establish a prima facie case because it did not demonstrate that the documents annexed to Careplus's motion were admissible as business records. The main issue decided was whether Careplus made a prima facie showing of entitlement to summary judgment, and the court held that Careplus failed to do so, as the affidavit submitted by Careplus's billing manager did not establish the admissibility of the documents annexed to Careplus's moving papers. Therefore, the denial of Careplus's motion for summary judgment was affirmed.

Reported in New York Official Reports at Careplus Med. Supply, Inc. v Allstate Ins. Co. (2009 NY Slip Op 51398(U))

Careplus Med. Supply, Inc. v Allstate Ins. Co. (2009 NY Slip Op 51398(U)) [*1]

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

2009 NY Slip Op 51398(U) [24 Misc 3d 134(A)]

Decided on June 29, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., MOLIA and NICOLAI, JJ
2008-1864 N C.

Careplus Medical Supply, Inc. a/a/o LUIS RAMIREZ, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), entered September 8, 2008. The order denied plaintiff’s motion for summary judgment.

Order affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that plaintiff did not make a prima facie showing of its entitlement to judgment
as a matter of law. The District Court denied plaintiff’s motion, holding that the affidavit by plaintiff’s billing manager failed to establish a prima facie case because it did not demonstrate that the documents annexed to plaintiff’s motion were admissible as business records. This appeal by plaintiff ensued.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Rudolph, P.J., Molia and Nicolai, JJ., concur.
Decision Date: June 29, 2009