August 16, 2007

Great Wall Acupuncture v Liberty Mut. Ins. Co. (2007 NY Slip Op 51609(U))

Headnote

The court considered the fact that the plaintiff, Great Wall Acupuncture, moved for summary judgment in an action to recover assigned first-party no-fault benefits. The main issue was whether the affidavit submitted by the plaintiff's corporate officer established a proper foundation for the admission of the documents annexed to the plaintiff's moving papers. The court held that the affidavit submitted by the plaintiff's corporate officer was insufficient to establish that the officer possessed personal knowledge of the plaintiff's practices and procedures, and therefore failed to lay a foundation for the admission of the documents as business records. As a result, the court reversed the order granting plaintiff's motion for summary judgment and denied the motion.

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)) [*1]

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 16, 2007

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.

Great Wall Acupuncture a/a/o Pedro Vasquez, Kevin Walker, Harvey Cobb, Stephen Ifill, Christopher Lantigua, Jose Moratin and Eggleys Lantigua, Respondent,
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