February 6, 2007

Fair Price Med. Supply Corp. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 50237(U))

Headnote

The court considered a case in which Fair Price Medical Supply Corp. was seeking to recover assigned first-party no-fault benefits from Nationwide Mutual Insurance Company. Fair Price's motion for summary judgment was based on an affirmation from their counsel, an affidavit by a corporate officer, and various documents. However, the affidavit by the corporate officer was deemed insufficient to establish personal knowledge of the facts, specifically regarding Fair Price's office practices and procedures, to lay a proper foundation for the documents to be admitted as business records. The court held that Fair Price failed to make a prima facie showing of its entitlement to summary judgment, and therefore, the motion was properly denied. The main issue decided was whether Fair Price had established a proper foundation for the documents to be admitted as business records, and the holding was that they had not, leading to the denial of their motion for summary judgment.

Reported in New York Official Reports at Fair Price Med. Supply Corp. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 50237(U))

Fair Price Med. Supply Corp. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 50237(U)) [*1]

Fair Price Med. Supply Corp. v Nationwide Mut. Ins. Co.

2007 NY Slip Op 50237(U) [14 Misc 3d 136(A)]

Decided on February 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-291 K C.

Fair Price Medical Supply Corp. a/a/o Anna Cadet, Appellant,
against
Nationwide Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Milagros A. Matos, J.), entered December 22, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider of medical supplies 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 that the affidavit by plaintiff’s corporate officer was insufficient to establish personal knowledge of the facts set forth therein because the corporate officer did not demonstrate that he possessed sufficient personal knowledge of plaintiff’s office practices and procedures to lay a proper foundation to establish that the documents submitted by plaintiff were admissible pursuant to the business records exception to the hearsay rule (see CPLR 4518). The court denied plaintiff’s motion for summary judgment, holding that plaintiff did not make a prima facie showing, and this appeal ensued.

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 [*2]
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 motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: February 6, 2007