March 10, 2008

Fortune Med., P.C. v New York Cent. Mut. Fire Ins. (2008 NY Slip Op 50522(U))

Headnote

The main issue in this case was whether the plaintiff, a medical provider, was entitled to recover first-party no-fault benefits. The court considered the affidavit of the plaintiff's corporate officer, who submitted documents to support the motion for summary judgment. The court found that the affidavit failed to establish that the officer had personal knowledge of the plaintiff's practices and procedures, and therefore did not lay a proper foundation for the admission of the documents as business records. As a result, the court held that the plaintiff failed to make a prima facie showing of its entitlement to summary judgment, and reversed the order granting the motion, denying plaintiff's motion for summary judgment.

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)) [*1]

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 10, 2008

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.

Fortune Medical, P.C. a/a/o Vladimir Niktalov, Respondent,
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