January 31, 2007

Fair Price Med. Supply Corp. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50168(U))

Headnote

The court considered a motion for summary judgment in an action by a provider to recover assigned first-party no-fault benefits. The motion was supported by an affirmation from the provider's counsel, an affidavit by a corporate officer of the provider, and various documents annexed thereto. However, the affidavit executed by the corporate officer was insufficient to establish that the officer possessed personal knowledge of the provider's practices and procedures so as to lay a foundation for the admission of the documents as business records. As a result, the court denied the provider's motion for summary judgment, holding that the moving papers failed to establish a prima facie case. The main issue decided was whether the provider's motion for summary judgment should be granted, and the holding was that the motion was properly denied due to the insufficiency of the affidavit to establish a prima facie case.

Reported in New York Official Reports at Fair Price Med. Supply Corp. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50168(U))

Fair Price Med. Supply Corp. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50168(U)) [*1]

Fair Price Med. Supply Corp. v Progressive Cas. Ins. Co.

2007 NY Slip Op 50168(U) [14 Misc 3d 135(A)]

Decided on January 31, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-314 K C.

Fair Price Medical Supply Corp. a/a/o Vladimer Iremadze, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 13, 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 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. After defendant opposed the motion, the court denied plaintiff’s motion, holding that plaintiff’s moving papers 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 Bath Med. Supply, Inc. v Deerbrook Ins. Co., Misc 3d , 2007 NY Slip Op [App Term, 2d & 11th Jud Dists]; 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.