March 26, 2007

Fair Price Med. Supply Corp. v Allstate Ins. Co. (2007 NY Slip Op 50608(U))

Headnote

The main issue in this case was whether the provider, Fair Price Medical Supply Corp., was entitled to recover assigned first-party no-fault benefits from Allstate Insurance Co. The court considered the evidence presented, including an affirmation from the provider's counsel, an affidavit from a corporate officer of the provider, and various documents. However, the court found that the affidavit executed by the provider's corporate officer did not sufficiently demonstrate personal knowledge of the facts set forth, and therefore failed to establish a prima facie case. As a result, the court affirmed the denial of the provider's motion for summary judgment, as they had not demonstrated their entitlement to the benefits in question. Therefore, the holding of the court was that the provider's motion for summary judgment was properly denied.

Reported in New York Official Reports at Fair Price Med. Supply Corp. v Allstate Ins. Co. (2007 NY Slip Op 50608(U))

Fair Price Med. Supply Corp. v Allstate Ins. Co. (2007 NY Slip Op 50608(U)) [*1]

Fair Price Med. Supply Corp. v Allstate Ins. Co.

2007 NY Slip Op 50608(U) [15 Misc 3d 129(A)]

Decided on March 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 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
2006-358 K C.

FAIR PRICE MEDICAL SUPPLY CORP. a/a/o Tetyana Nikolayeva, Appellant,
against
ALLSTATE INSURANCE CO., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered January 26, 2006. 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 by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate 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 corporate officer 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. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate 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., 14 Misc 3d 44 [*2][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 26, 2007