February 1, 2007

Delta Diagnostic Radiology, P.C. v Mercury Cas. Co. (2007 NY Slip Op 50264(U))

https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-mercury-cas-co-2007-ny-slip-op-50264u/

Court
Appellate Term, Second Department
Decided
February 1, 2007
Citation
2007 NY Slip Op 50264(U) · 14 Misc 3d 138(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Provider's prima facie case
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
Delta Diagnostic Radiology, P.C. v Mercury Cas. Co., 14 Misc 3d 138(A), 2007 NY Slip Op 50264(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-records foundation. The provider moved for summary judgment on assigned no-fault claims, submitting counsel's affirmation, a corporate officer's affidavit, and supporting documents. The officer described the documents as business records only in conclusory terms and did not establish personal knowledge of the provider's practices and procedures. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed the denial of the provider's motion because the documents lacked a proper foundation for admission as business records.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Mercury Cas. Co. (2007 NY Slip Op 50264(U))

[*1]
Delta Diagnostic Radiology, P.C. v Mercury Cas. Co.
2007 NY Slip Op 50264(U) [14 Misc 3d 138(A)]
Decided on February 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2007
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-292 K C.

Delta Diagnostic Radiology, P.C. a/a/o Oscar Richards, Appellant,

against

Mercury Casualty Company, Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 8, 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 the affidavit by plaintiff’s corporate officer 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. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as 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., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

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

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