February 1, 2007
DJS Med. Supplies, Inc. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50261(U))
https://www.beynensonlaw.com/case-law/djs-med-supplies-inc-v-progressive-cas-ins-co-2007-ny-slip-op-50261u/
- Decided
- February 1, 2007
- Citation
- 2007 NY Slip Op 50261(U) · 14 Misc 3d 138(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Claimant's prima facie case on motions (see the maps)
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.
Reported in New York Official Reports at DJS Med. Supplies, Inc. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50261(U))
| DJS Med. Supplies, Inc. v Progressive Cas. Ins. Co. |
| 2007 NY Slip Op 50261(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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-30 Q C.
against
Progressive Casualty Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered June 30, 2005. The order, insofar as appealed from, denied plaintiff’s cross motion for summary judgment.
Order, insofar as appealed from, affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s cross 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.
In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s 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 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 cross motion for summary judgment was properly denied.
Pesce, P.J., Rios and Belen, JJ., concur.
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved
Held the provider failed its prima facie showing because its officer's conclusory affidavit did not show personal knowledge of the provider's practices to lay a business-records foundation for the annexed documents.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
Similar decisions
- DJS Med. Supplies, Inc. v Travelers Prop. Cas. Ins. Co. (2009 NY Slip Op 50584(U))The provider's officer affidavit failed to establish the personal knowledge needed to admit its supporting documents as business records.
- A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50671(U))The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation.
- Fair Price Med. Supply Corp. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50168(U))The provider's corporate officer affidavit failed to lay the business-records foundation needed to establish a prima facie case.
- JSI Expert Servs., Inc. v Travelers Ins. Co. (2007 NY Slip Op 51974(U))The provider's conclusory employee affidavit failed to establish a business-record foundation for its summary judgment documents.
- Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50087(U))The provider failed to establish its prima facie case because its officer's affidavit did not lay a business-records foundation.