February 26, 2007

First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co. (2007 NY Slip Op 50365(U))

Headnote

The relevant facts considered by the court were that the plaintiff, an acupuncture provider, was seeking to recover first-party no-fault benefits from the defendant insurance company. The plaintiff moved for summary judgment in the case, but the motion was denied by the trial court. The main issue decided was whether the plaintiff had made a prima facie case, as the affidavit submitted by the plaintiff's employee was deemed insufficient to establish personal knowledge of the plaintiff's practices and procedures. The holding of the case was that the plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as the affidavit submitted was insufficient to establish that the employee possessed personal knowledge of the plaintiff's practices and procedures. Therefore, the denial of the plaintiff's motion for summary judgment was affirmed by the appellate court.

Reported in New York Official Reports at First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co. (2007 NY Slip Op 50365(U))

First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co. (2007 NY Slip Op 50365(U)) [*1]

First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co.

2007 NY Slip Op 50365(U) [14 Misc 3d 142(A)]

Decided on February 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2006-187 K C.

First Help Acupuncture, P.C. a/a/o Zach Glot, Appellant,
against
Lumbermens Mutual Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 10, 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 moved for summary judgment. The court below denied the motion on the ground that plaintiff failed to make a prima facie case because the affidavit submitted by plaintiff’s employee was insufficient to establish that said employee possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation to
establish that the documents annexed to plaintiff’s moving papers were admissible as business records. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s employee was insufficient to establish that said employee 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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; 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]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: February 26, 2007