Fortune Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50243(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Randy Sue Marber, J.), entered May 10, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services provided its assignor, plaintiff moved for summary judgment. The court below denied the motion and we affirm.As the court below properly determined, plaintiff’s supporting affidavit failed to assert a proper foundation to admit plaintiff’s exhibits as business records. The affidavit, by someone identified only as plaintiff’s “corporate officer,” did
not set forth the affiant’s personal knowledge of plaintiff’s business practices and procedures for creating bills to establish the admissibility of the claims forms and of the other documents annexed to the affidavit, pursuant to the business records exception to the hearsay rule (see CPLR 4518; 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]). Indeed, such an affidavit is of no more probative value than an attorney’s affirmation (Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]).

We note that, contrary to plaintiff’s contention, even where an insurer’s denial of claim form, acknowledging receipt of claims, is properly placed before the court, it “merely establishe[s] that defendant received claim forms submitted by, or on behalf of plaintiff, but [does] not concede the admissibility of the purported claim forms or the facts set forth therein” (Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur. [*2]
Decision Date: February 7, 2007