December 1, 2006

Delta Diagnostic Radiology, P.C. v Liberty Mut. Ins. Co. (2006 NY Slip Op 52303(U))

Headnote

The main issue in this case was whether the plaintiff, Delta Diagnostic Radiology, P.C., had demonstrated its prima facie entitlement to judgment as a matter of law in its action to recover assigned first-party no-fault benefits. The court considered the evidence presented by the plaintiff in support of its motion for summary judgment, which included an affirmation from counsel, an affidavit from a corporate officer, and various documents. The defendant argued that the plaintiff had failed to show that the documents constituted business records and lacked a statement from someone with personal knowledge regarding the documents annexed to the motion papers. The court ultimately held that the plaintiff had failed to demonstrate its prima facie entitlement to judgment as a matter of law, and affirmed the denial of the motion for summary judgment. The decision was based on the failure of the plaintiff's corporate officer to lay a foundation for the admission of the documents as business records.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Liberty Mut. Ins. Co. (2006 NY Slip Op 52303(U))

Delta Diagnostic Radiology, P.C. v Liberty Mut. Ins. Co. (2006 NY Slip Op 52303(U)) [*1]

Delta Diagnostic Radiology, P.C. v Liberty Mut. Ins. Co.

2006 NY Slip Op 52303(U) [13 Misc 3d 143(A)]

Decided on December 1, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT:: PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1785 K C.

Delta Diagnostic Radiology, P.C. a/a/o Jean Rody Medouze, Appellant,
against
Liberty Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered March 15, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a health care 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 “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 annexed to plaintiff’s motion papers were plaintiff’s business records. In opposition to plaintiff’s motion, defendant argued that, inter alia, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law because plaintiff’s moving papers lacked a statement from someone with personal knowledge regarding the documents annexed to their moving papers. The Civil Court denied plaintiff’s motion, holding that plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, and this appeal ensued.

Plaintiff’s contention that it established its prima facie case lacks merit. For the reasons stated in Dan Medical, P.C. v New York Cent. Mut. Fire Ins. Co. (No. 2005-1801 K C, decided herewith), the supporting affidavit submitted by plaintiff’s “corporate officer” failed to demonstrate that he was in a position to lay a foundation for the admission, as business records, [*2]of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 1, 2006