February 7, 2007

Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50246(U))

Headnote

The main issue in this case was whether the plaintiff, a medical provider, was entitled to recover assigned first-party no-fault benefits from the defendant, an insurance company. The court considered the affidavit submitted by the plaintiff's corporate officer in support of the motion for summary judgment, which failed to lay a proper foundation for the documents annexed to the moving papers. The court also considered defendant's argument that the plaintiff's corporate officer did not possess personal knowledge of the plaintiff's practices and procedures to establish a prima facie case. The court found that the affidavit was insufficient to establish the plaintiff's entitlement to summary judgment and ultimately denied the motion. The holding of the court was that the denial of plaintiff's motion for summary judgment was affirmed without costs.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50246(U))

Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50246(U)) [*1]

Delta Diagnostic Radiology, P.C. v Allstate Ins. Co.

2007 NY Slip Op 50246(U) [14 Misc 3d 137(A)]

Decided on February 7, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 7, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT:: WESTON PATTERSON, J.P., RIOS and BELEN, JJ
2006-207 K C.

Delta Diagnostic Radiology, P.C. a/a/o George Johnson, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 19, 2005. 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. The court below denied the motion on the ground that plaintiff’s moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its motion for summary judgment.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. 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, Inc. v Deerbrook Ins. Co., Misc 3d , 2007 NY Slip Op [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: February 7, 2007