February 1, 2007

DJS Med. Supplies, Inc. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50261(U))

Headnote

The main issue of the case was whether or not the affidavit submitted by the plaintiff's officer was sufficient to establish that said officer possessed personal knowledge of plaintiff's practices and procedures in order to lay a foundation for the admission of the documents as business records. The court considered the affirmation from plaintiff's counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The holding of the court was that 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. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment, and therefore, plaintiff's cross motion for summary judgment was properly denied.

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)) [*1]

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This opinion is uncorrected and will not be published in the printed Official Reports.

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
2006-30 Q C.

DJS Medical Supplies, Inc., a/a/o Rosa Reyes, Appellant,
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.