February 27, 2007

Fortune Med., P.C. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 50376(U))

Headnote

The relevant facts considered by the court in this case were that the plaintiff, a medical provider, was seeking to recover first-party no-fault benefits from the defendant insurance company. The plaintiff's motion for summary judgment was denied by the lower court because the affidavit by the plaintiff's corporate officer failed to establish personal knowledge of the mailing of the claims. The main issue decided by the court on appeal was whether the affidavit submitted by the plaintiff's corporate officer laid a proper foundation for the documents submitted as business records. The holding of the court was that the affidavit was insufficient to establish that the officer possessed personal knowledge of the plaintiff's practices and procedures, and therefore, the plaintiff failed to make a prima facie showing of entitlement to summary judgment, and the denial of the motion for summary judgment was affirmed.

Reported in New York Official Reports at Fortune Med., P.C. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 50376(U))

Fortune Med., P.C. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 50376(U)) [*1]

Fortune Med., P.C. v Nationwide Mut. Ins. Co.

2007 NY Slip Op 50376(U) [14 Misc 3d 143(A)]

Decided on February 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT:: WESTON PATTERSON, J.P., RIOS and BELEN, JJ
2006-203 K C. —————————————————————————————————————————————————— x

Fortune Medical, P.C. a/a/o Aleksandr Mamon, Appellant,
against
Nationwide Mutual Insurance Company, Respondent. —————————————————————————————————————————————————— x

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered December 1, 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 an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. The
court below denied the motion on the ground that plaintiff’s moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its motion for summary judgment.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish [*2]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. Accordingly,
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, Jan. 12, 2007]; 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.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: February 27, 2007