October 9, 2008

Focus Radiology, P.C. v Utica Mut. Ins. Co. (2008 NY Slip Op 52050(U))

Headnote

The main issue in this case was whether the plaintiff was entitled to summary judgment to recover assigned first-party no-fault benefits. The court considered the affidavit of plaintiff's employee and various documents annexed thereto, as well as the argument by the defendant that the affidavit failed to lay a proper foundation for admission of the attached documents as business records. The holding of the court was that the plaintiff failed to make a prima facie showing of its entitlement to summary judgment because the affidavit of plaintiff's employee did not refer to the documents attached to the moving papers and did not assert that they were plaintiff's business records, as required by CPLR 4518(a). Therefore, the court reversed the order granting summary judgment to the plaintiff and denied plaintiff's motion for summary judgment. No other issues were considered in light of this decision.

Reported in New York Official Reports at Focus Radiology, P.C. v Utica Mut. Ins. Co. (2008 NY Slip Op 52050(U))

Focus Radiology, P.C. v Utica Mut. Ins. Co. (2008 NY Slip Op 52050(U)) [*1]

Focus Radiology, P.C. v Utica Mut. Ins. Co.

2008 NY Slip Op 52050(U) [21 Misc 3d 130(A)]

Decided on October 9, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 9, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : McCABE, J.P., TANENBAUM and MOLIA, JJ
2007-1287 N C.

Focus Radiology, P.C., a/a/o JEAN ISAAC, Respondent,
against
Utica Mutual Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, Third District (Norman Janowitz, J.), entered May 14, 2007. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

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 plaintiff’s employee and various documents annexed thereto. In opposition to plaintiff’s motion, defendant argued, inter alia, that the affidavit of plaintiff’s employee failed to lay a proper foundation for admission of the documents attached to plaintiff’s moving papers as business records pursuant to CPLR 4518 (a). The court below granted plaintiff’s motion for summary judgment, finding that plaintiff made a prima facie case and that defendant failed to raise a triable issue of fact. The instant appeal by defendant ensued.

Since the affidavit of plaintiff’s employee did not refer to the documents attached to plaintiff’s moving papers, let alone assert that they are plaintiff’s business records (see CPLR 4518 [a]), plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment should have been denied.

In light of the foregoing, we reach no other issue. [*2]

McCabe, J.P., Tanenbaum and Molia, JJ., concur.
Decision Date: October 09, 2008