February 26, 2007
Great Wall Acupuncture v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50364(U))
https://www.beynensonlaw.com/case-law/great-wall-acupuncture-v-new-york-cent-mut-fire-ins-co-2007-ny-slip-op-50364u/
- Decided
- February 26, 2007
- Citation
- 2007 NY Slip Op 50364(U) · 14 Misc 3d 142(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 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) [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| As corrected in part through March 22, 2007; it will not be published in the printed Official Reports. |
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.
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
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 showing because its employee's affidavit did not show personal knowledge of the provider's practices to lay a business-records foundation for the annexed documents.
Of the 1,065 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
- Great Wall Acupuncture v Liberty Mut. Ins. Co. (2007 NY Slip Op 50676(U))The provider failed to establish a business-records foundation through its employee's affidavit and did not make a prima facie showing.
- 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.
- 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.