June 2, 2009

Careplus Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 51132(U))

Headnote

The main issue in this case was whether plaintiff, Careplus Medical Supply, Inc., was entitled to summary judgment in their action to recover first-party no-fault benefits. The court considered the affidavit submitted by plaintiff's president and medical biller, which failed to establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518. As a result, the court held that plaintiff failed to make a prima facie showing of its entitlement to summary judgment and therefore denied plaintiff's motion. Therefore, the holding of the case was that plaintiff's motion for summary judgment was properly denied.

Reported in New York Official Reports at Careplus Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 51132(U))

Careplus Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 51132(U)) [*1]

Careplus Med. Supply, Inc. v Utica Mut. Ins. Co.

2009 NY Slip Op 51132(U) [23 Misc 3d 145(A)]

Decided on June 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., TANENBAUM and MOLIA, JJ
2008-1445 N C.

Careplus Medical Supply, Inc. a/a/o PAUL ANDERSON and ALICIA PRINCE, Appellant,
against
Utica Mutual Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Bonnie P. Chaikin, J.), entered June 18, 2008. 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. Defendant opposed the motion, arguing, inter
alia, that the affidavit by plaintiff’s president and medical biller failed to make a prima facie showing of plaintiff’s entitlement to judgment as a matter of law. The District Court denied plaintiff’s motion, holding, inter alia, that plaintiff failed to establish its prima facie case. 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 president and medical biller failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; 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. We reach no other issue.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: June 02, 2009