June 1, 2007

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2007 NY Slip Op 51157(U))

Headnote

The main issue in this case was whether Delta Diagnostic Radiology, P.C. was entitled to recover first-party no-fault benefits from Country-Wide Insurance Company. The court considered the evidence presented, which included an affirmation from plaintiff's counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed to the motion papers. The affidavit by plaintiff's corporate officer stated in a conclusory manner that the documents attached were business records, but defendant argued that the moving papers did not proffer admissible facts. The court held that there was an issue of fact as to whether the services were rendered by an independent contractor, and denied plaintiff's motion for summary judgment. The holding of the case was that the affidavit submitted by plaintiff's corporate officer was insufficient to establish the officer's personal knowledge of plaintiff's practices and procedures, and therefore plaintiff failed to make a prima facie showing of entitlement to summary judgment.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2007 NY Slip Op 51157(U))

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2007 NY Slip Op 51157(U)) [*1]

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co.

2007 NY Slip Op 51157(U) [15 Misc 3d 143(A)]

Decided on June 1, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2006-544 K C.

Delta Diagnostic Radiology, P.C., a/a/o Michael Clark, Appellant,
against
Country-Wide Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 18, 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’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, holding that there was an issue of fact as to whether the services were rendered by an independent contractor. The instant appeal by plaintiff ensued.

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 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, [*2]2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied albeit on other grounds. In light of the foregoing, we reach no other issue.

Golia, J.P., Rios and Belen, JJ., concur.