March 19, 2007

Great Wall Acupuncture v American Tr. Ins. Co. (2007 NY Slip Op 50538(U))

Headnote

The court considered the plaintiff's motion for summary judgment in a case seeking to recover first-party no-fault benefits. The plaintiff's motion was supported by an affidavit from the plaintiff's employee and various documents, which the employee claimed were the plaintiff's business records. However, the court denied the motion on the grounds that the affidavit was legally insufficient to establish the employee's personal knowledge of the plaintiff's practices and procedures, which was necessary to admit the documents as business records. The main issue decided by the court was whether the plaintiff had made a prima facie showing of its entitlement to summary judgment, which it had not. Therefore, the court affirmed the order denying the plaintiff's motion for summary judgment, as the plaintiff had failed to establish its case.

Reported in New York Official Reports at Great Wall Acupuncture v American Tr. Ins. Co. (2007 NY Slip Op 50538(U))

Great Wall Acupuncture v American Tr. Ins. Co. (2007 NY Slip Op 50538(U)) [*1]

Great Wall Acupuncture v American Tr. Ins. Co.

2007 NY Slip Op 50538(U) [15 Misc 3d 127(A)]

Decided on March 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-340 K C.

Great Wall Acupuncture a/a/o JANETT TEJADA, JENNIFER ALTMAN, OSVALDO GONZALES and LUIS PEREZ-SEPULVEDA, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 10, 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 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. The court below denied the motion on the ground that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s employee was legally insufficient. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as 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 [*2]judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Golia and Rios, JJ., concur.