April 1, 2009

DJS Med. Supplies, Inc. v Travelers Prop. Cas. Ins. Co. (2009 NY Slip Op 50584(U))


The case involved a provider seeking to recover assigned first-party no-fault benefits. The provider moved for summary judgment, but the defendant argued that the plaintiff's affidavit did not establish the admissibility of the annexed documentation as business records. The court denied the plaintiff's motion, finding that they had failed to establish a prima facie case. The plaintiff appealed, but the appellate court affirmed the lower court's decision, stating that the affidavit submitted was insufficient to establish the officer's personal knowledge of the plaintiff's practices and procedures. The court also rejected the plaintiff's argument that the lower court had improperly considered untimely papers submitted by the defendant in opposition to the motion. The holding of the case was that the order denying the plaintiff's motion for summary judgment was affirmed.

Reported in New York Official Reports at DJS Med. Supplies, Inc. v Travelers Prop. Cas. Ins. Co. (2009 NY Slip Op 50584(U))

DJS Med. Supplies, Inc. v Travelers Prop. Cas. Ins. Co. (2009 NY Slip Op 50584(U)) [*1]
DJS Med. Supplies, Inc. v Travelers Prop. Cas. Ins. Co.
2009 NY Slip Op 50584(U) [23 Misc 3d 128(A)]
Decided on April 1, 2009
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 1, 2009



2008-435 K C.
DJS Medical Supplies, Inc. a/a/o FRANK MELENDEZ, Appellant,


Travelers Property Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered January 17, 2008. 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 moved for summary judgment. In opposition, defendant argued, inter alia, that plaintiff’s affidavit did not lay a proper foundation to establish that the annexed documentation was admissible as business records pursuant to CPLR 4518. The court denied plaintiff’s motion, finding that plaintiff had “failed to establish its prima facie case.” The instant 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 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Plaintiff’s contention that the Civil Court below improvidently exercised its discretion in considering the untimely papers submitted by defendant in opposition to plaintiff’s motion lacks merit since the court also considered the reply papers submitted by plaintiff (see e.g. Vlassis v Corines, 254 AD2d 273, 274 [1998]; Kavakis v Total Care Systems, 209 AD2d 480 [1994]).

In view of the foregoing, the order is affirmed.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: April 01, 2009