March 10, 2008
Fortune Med., P.C. v New York Cent. Mut. Fire Ins. (2008 NY Slip Op 50522(U))
https://www.beynensonlaw.com/case-law/fortune-med-p-c-v-new-york-cent-mut-fire-ins-2008-ny-slip-op50522u/
- Decided
- March 10, 2008
- Citation
- 2008 NY Slip Op 50522(U) · 19 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- 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 Fortune Med., P.C. v New York Cent. Mut. Fire Ins. (2008 NY Slip Op 50522(U))
| Fortune Med., P.C. v New York Cent. Mut. Fire Ins. |
| 2008 NY Slip Op 50522(U) [19 Misc 3d 129(A)] |
| Decided on March 10, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-112 Q C.
against
New York Central Mutual Fire Insurance, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered May 8, 2006. 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 first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted the motion, and this appeal by defendant ensued.
On appeal, defendant asserts that the affidavit of plaintiff’s corporate officer, submitted in support of the motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish 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., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the order is reversed and plaintiff’s motion for summary judgment denied.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 10, 2008
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 burden because its corporate officer's affidavit did not show personal knowledge of the provider's practices and procedures 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.
- Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U)) FollowedThe insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal.
- 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
- Fortune Med., P.C. v Country Wide Ins. Co. (2010 NY Slip Op 52154(U))The provider failed to establish its prima facie case because its officer's affidavit did not authenticate the supporting documents as business records.
Similar decisions
- Fortune Med., P.C. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 50376(U))The provider failed to establish its prima facie case because its officer's affidavit lacked a business-records foundation.
- Fortune Med., P.C. v Kemper Ins. Co. (2007 NY Slip Op 50388(U))The provider failed to establish its prima facie case because its officer's affidavit did not authenticate the supporting business records.
- Bedford Park Med. Practice, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50289(U))The provider's cross motion for summary judgment failed because its corporate officer did not lay a business-record foundation.
- Midwood Med. Equip. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50670(U))The provider's officer affidavit did not establish a business-records foundation, defeating its prima facie entitlement to summary judgment.
- Capri Med., P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 50536(U))The provider failed to prove submission of its claims because its officer's affidavit did not establish a business-records foundation.