December 7, 2007
Gentle Care Acupuncture, P.C. v Allstate Ins. Co. (2007 NY Slip Op 52334(U))
https://www.beynensonlaw.com/case-law/gentle-care-acupuncture-p-c-v-allstate-ins-co-2007-ny-slip-op52334u/
- Decided
- December 7, 2007
- Citation
- 2007 NY Slip Op 52334(U) · 17 Misc 3d 138(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 Gentle Care Acupuncture, P.C. v Allstate Ins. Co. (2007 NY Slip Op 52334(U))
| Gentle Care Acupuncture, P.C. v Allstate Ins. Co. |
| 2007 NY Slip Op 52334(U) [17 Misc 3d 138(A)] |
| Decided on December 7, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-2042 Q C.
against
Allstate Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Arthur F. Engoron J.), entered June 21, 2006. 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 employee of plaintiff, and various documents annexed thereto. The affidavit executed by
plaintiff’s employee stated in a conclusory manner that the documents attached to plaintiff’s
motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that
the affidavit by plaintiff’s employee did not proffer facts in admissible form so as to establish
plaintiff’s prima
facie entitlement to judgment as a matter of law. The court denied plaintiff’s motion on the
ground that there were issues of fact as to coverage as well as with respect to the timeliness of
defendant’s denial of claim forms. This appeal by plaintiff ensued.
Since the affidavit submitted by plaintiff’s employee was insufficient to establish that said employee 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.
Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: December 7, 2007
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 case because its employee's conclusory affidavit did not establish personal knowledge of its practices needed to admit the annexed documents as business records.
Of the 1,063 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.
- 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.
Similar decisions
- First Help Acupuncture, P.C. v General Assur. Co. (2007 NY Slip Op 50859(U))The provider's employee failed to establish personal knowledge sufficient to admit the motion's supporting documents as business records.
- Boai Zhong Yi Acupuncture Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 51601(U))The provider's conclusory business-records affidavit failed to establish prima facie entitlement to summary judgment.
- Downtown Acupuncture, P.C. v Geico Gen. Ins. Co. (2007 NY Slip Op 50660(U))The provider's president failed to establish a business-records foundation, defeating the provider's prima facie summary judgment showing.
- Great Wall Acupuncture, P.C. v Travelers Prop. Cas. (2007 NY Slip Op 51969(U))The provider's employee failed to establish a business-records foundation for the bills supporting its summary judgment motion.
- N.Y.Q. Acupuncture, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 51614(U))The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-record foundation.