February 26, 2007
First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co. (2007 NY Slip Op 50365(U))
https://www.beynensonlaw.com/case-law/first-help-acupuncture-p-c-v-lumbermens-mut-ins-co-2007-ny-slip-op-50365u/
- Decided
- February 26, 2007
- Citation
- 2007 NY Slip Op 50365(U) · 14 Misc 3d 142(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Contrasted (cf., but see) in 1 later decision (see Cited by)
- Legal questions
- Claimant's prima facie case on motions (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
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) [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| This opinion is uncorrected and will not be published in the printed Official Reports. |
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.
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
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved
Held the provider failed its prima facie showing because its employee's affidavit did not show personal knowledge of the provider's practices to lay a business-records foundation for the annexed documents.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
Cited by
A label shows how the later decision treated this one.
- American Tr. Ins. Co. v Lucas (2013 NY Slip Op 07273) Contrasted (cf., but see)Failure to attend duly scheduled IMEs voids the policy ab initio and permits retroactive denial of claims regardless of denial timeliness.
Similar decisions
- First Help Acupuncture, P.C. v General Assur. Co. (2007 NY Slip Op 50859(U))The provider's employee failed to establish personal knowledge sufficient to admit the motion's supporting documents as business records.
- Great Wall Acupuncture v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50364(U))The provider's conclusory employee affidavit failed to establish the business-records foundation required for summary judgment.
- Boai Zhong Yi Acupuncture Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 51601(U))The provider's conclusory business-records affidavit failed to establish prima facie entitlement to summary judgment.
- Gentle Care Acupuncture, P.C. v Allstate Ins. Co. (2007 NY Slip Op 52334(U))The provider failed to establish its prima facie case because its employee's affidavit did not lay a business records foundation.
- Great Wall Acupuncture v Liberty Mut. Ins. Co. (2007 NY Slip Op 50676(U))The provider failed to establish a business-records foundation through its employee's affidavit and did not make a prima facie showing.