January 4, 2008

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50087(U))

Headnote

The main issue in Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. was whether the provider, Delta Diagnostic Radiology, P.C., was entitled to recover assigned first-party no-fault benefits from Progressive Casualty Insurance Co. The court considered that the affidavit submitted by Delta Diagnostic's officer was insufficient to establish that the officer possessed personal knowledge of the company's practices and procedures to lay a foundation for the admission of the documents attached to the motion papers as business records. The main holding of the case was that Delta Diagnostic failed to make a prima facie showing of its entitlement to summary judgment, and therefore the order denying their motion for summary judgment was affirmed, albeit on other grounds. Consequently, the denial of the motion for summary judgment was upheld by the court.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50087(U))

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50087(U)) [*1]

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co.

2008 NY Slip Op 50087(U) [18 Misc 3d 132(A)]

Decided on January 4, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 4, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1661 K C.

Delta Diagnostic Radiology, P.C. a/a/o Jane Welcome, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered June 22, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed with $10 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. The court below denied the motion, finding that defendant provided proof of timely verification requests and of a timely denial based upon a peer review. This appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s 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 (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 denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

Weston Patterson, J.P., Golia and Belen, JJ., concur.