August 16, 2007
Great Wall Acupuncture v Liberty Mut. Ins. Co. (2007 NY Slip Op 51609(U))
https://www.beynensonlaw.com/case-law/great-wall-acupuncture-v-liberty-mut-ins-co-2007-ny-slip-op-51609u/
- Decided
- August 16, 2007
- Citation
- 2007 NY Slip Op 51609(U) · 16 Misc 3d 135(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 Great Wall Acupuncture v Liberty Mut. Ins. Co. (2007 NY Slip Op 51609(U))
| Great Wall Acupuncture v Liberty Mut. Ins. Co. |
| 2007 NY Slip Op 51609(U) [16 Misc 3d 135(A)] |
| Decided on August 16, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : PESCE, P.J., RIOS and BELEN, JJ
2006-791 K C.
against
Liberty Mutual Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered March 2, 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 assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted the motion and the instant appeal by defendant ensued.
On appeal, defendant asserts that the affidavit by 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]; Dan Med., P.C. v New [*2]York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.
Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 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, reversing summary judgment for it, because its officer's affidavit did not lay a business-records foundation for the annexed documents.
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
- Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U))The 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)The 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
- Great Wall Acupuncture v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50364(U))The provider's conclusory employee affidavit failed to establish the business-records foundation required for summary judgment.
- Great Wall Acupuncture v American Tr. Ins. Co. (2007 NY Slip Op 50538(U))The provider failed to establish a business-records foundation because its employee's affidavit did not show the necessary personal knowledge.
- 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.
- Great Wall Acupuncture v Peerless Ins. Co. (2007 NY Slip Op 51606(U))The insurer failed to raise a triable coverage issue on its defense that the insured vehicle was not involved in the accident.
- Great Wall Acupuncture, P.C. v New York Central Mutual Insurance Company (2009 NY Slip Op 50224(U))The insurer's untimely EUO request failed to toll its time to pay or deny, precluding its defense based on the provider owner's nonappearance.