March 28, 2007

Downtown Acupuncture, P.C. v Geico Gen. Ins. Co. (2007 NY Slip Op 50660(U))

Headnote

The relevant facts in this case involved an action by a provider to recover assigned first-party no-fault benefits. The plaintiff's motion for summary judgment was supported by an affirmation from plaintiff's counsel, an affidavit from plaintiff’s president, and various documents annexed thereto. The defendant argued that the affidavit by plaintiff's president failed to set forth facts sufficient to demonstrate personal knowledge of the facts, and as a result, plaintiff failed to establish a prima facie case. The court denied the motion on the ground that defendant raised an issue of fact as to whether the injuries arose from a covered incident. The main issue decided was whether the affidavit submitted by plaintiff's president was sufficient to establish personal knowledge and lay a foundation for the admission of the documents as business records. The holding was that the plaintiff failed to make a prima facie showing of its entitlement to summary judgment, and therefore the motion for summary judgment was properly denied.

Reported in New York Official Reports at Downtown Acupuncture, P.C. v Geico Gen. Ins. Co. (2007 NY Slip Op 50660(U))

Downtown Acupuncture, P.C. v Geico Gen. Ins. Co. (2007 NY Slip Op 50660(U)) [*1]

Downtown Acupuncture, P.C. v Geico Gen. Ins. Co.

2007 NY Slip Op 50660(U) [15 Misc 3d 130(A)]

Decided on March 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2005-1154 K C.

Downtown Acupuncture, P.C. a/a/o DANIEL SYLVESTER, WESLY WIGGINS, ABKING WILCOX and JOSEPH MAZZILLO, Appellant,
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered March 24, 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 from plaintiff s president and various documents annexed thereto. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s president failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. The court below denied the motion on the ground that defendant raised an issue of fact as to whether the injuries arose from a covered incident. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s president was insufficient to establish that she possessed personal knowledge of plaintiff’s practices and procedures so as to lay a [*2]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., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007