February 26, 2007

Great Wall Acupuncture v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50364(U))

Headnote

The main issue in this case was whether the plaintiff, Great Wall Acupuncture, had provided sufficient evidence to support its motion for summary judgment in an action to recover assigned first-party no-fault benefits. The court considered an affirmation from plaintiff's counsel, an affidavit from an employee of the plaintiff, and various documents annexed to the motion papers. The court found that the affidavit executed by plaintiff's employee was insufficient to establish personal knowledge of plaintiff's practices and procedures, which was necessary to lay a foundation for the admission of the documents as business records. As a result, the court held that the plaintiff had failed to make a prima facie showing of its entitlement to summary judgment, and affirmed the lower court's denial of the motion for summary judgment.

Reported in New York Official Reports at Great Wall Acupuncture v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50364(U))

Great Wall Acupuncture v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50364(U)) [*1]

Great Wall Acupuncture v New York Cent. Mut. Fire Ins. Co.

2007 NY Slip Op 50364(U) [14 Misc 3d 142(A)]

Decided on February 26, 2007

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through March 22, 2007; it will not be published in the printed Official Reports.

Decided on February 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT:: WESTON PATTERSON, J.P., RIOS and BELEN, JJ
2005-1994 K C.

Great Wall Acupuncture a/a/o Jean Francois, Appellant,
against
New York Central Mutual Fire Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 13, 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’s moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its motion for summary judgment.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s employee, submitted in support of the motion, failed to lay a proper foundation for the documents annexed [*2]to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. 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. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., Misc 3d , 2007 NY Slip Op [App Term, 2d & 11th Jud Dists, Jan. 12, 2007]; Dan Med., P.C. v New York Cent. Mut. Fire
Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: February 26, 2007