March 28, 2007

Colonia Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50679(U))

Headnote

The provider's summary judgment motion failed because its officer did not establish a business-records foundation for the supporting documents. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment on assigned no-fault claims. The officer's conclusory characterization of the attached documents as business records did not establish personal knowledge of the provider's practices and procedures sufficient to support admission. The court also dismissed as abandoned the provider's separate appeal from the order denying vacatur of the earlier order and renewal of the summary judgment motion, because the provider raised no issue concerning that ruling.

Reported in New York Official Reports at Colonia Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50679(U))

[*1]
Colonia Med., P.C. v Allstate Ins. Co.
2007 NY Slip Op 50679(U) [15 Misc 3d 132(A)]
Decided on March 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


PRESENT: : RUDOLPH, P.J., TANENBAUM and LaCAVA, JJ
2006-705 N C.
Colonia Medical, P.C. a/a/o SAMANTHA Y. BRYSON, Appellant,

against

Allstate Insurance Co., Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Randy Sue Marber, J.), dated June 14, 2005, and from an order of the same court, entered March 6, 2006. The order dated June 14, 2005, insofar as appealed from, denied plaintiff’s motion for summary judgment. The order entered March 6, 2006 denied plaintiff’s motion to vacate the order dated June 14, 2005 and to renew plaintiff’s motion for summary judgment.

Appeal from order entered March 6, 2006 dismissed.

Order dated June 14, 2005, insofar as appealed from, 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 an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. By order dated June 14, 2005, the court below denied the motion on the ground, inter alia, that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s corporate officer failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein. Plaintiff appeals from the denial of its motion for summary judgment. Plaintiff also appeals from the order entered March 6, 2006 which denied its motion to vacate the June 14, 2005 order and to renew its motion [*2]for summary judgment.

Since 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 proper foundation for the admissibility, 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 Fortune Med., P.C. v Allstate Ins. Co., _____ Misc 3d _____[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th 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, the order dated June 14, 2005 properly denied plaintiff’s motion for summary judgment.

To the extent plaintiff also appeals from the order entered March 6, 2006, plaintiff has raised no issue with respect thereto and, thus, said appeal is dismissed as abandoned.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 28, 2007