February 13, 2009

Infinity Health Prods., Ltd. v Country-Wide Ins. Co. (2009 NY Slip Op 50239(U))

Headnote

The court considered the circumstances of a case where a provider was seeking to recover first-party no-fault benefits, and had moved for summary judgment. The main issue decided was whether the affidavit submitted by the provider's billing manager and corporate officer laid a proper foundation for the admission of the documents annexed to the provider's moving papers. The court held that the affidavit was insufficient to establish that the individual possessed personal knowledge of the provider's practices and procedures, and therefore failed to make a prima facie showing of its entitlement to summary judgment. As a result, the judgment awarding the provider the principal sum of $2,217.50 was reversed, the order granting the provider's motion for summary judgment was vacated, and the provider's motion for summary judgment was denied.

Reported in New York Official Reports at Infinity Health Prods., Ltd. v Country-Wide Ins. Co. (2009 NY Slip Op 50239(U))

Infinity Health Prods., Ltd. v Country-Wide Ins. Co. (2009 NY Slip Op 50239(U)) [*1]

Infinity Health Prods., Ltd. v Country-Wide Ins. Co.

2009 NY Slip Op 50239(U) [22 Misc 3d 134(A)]

Decided on February 13, 2009

Appellate Term, Second Department

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

As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.

Decided on February 13, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and STEINHARDT, JJ
2008-175 Q C.

Infinity Health Products, Ltd. as assignee of POLARD GILLIAN, Respondent,
against
Country-Wide Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 21, 2007. The judgment, entered pursuant to an order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,217.50.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated 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. In opposition, defendant argued, inter alia, that there was an issue of fact as to the medical necessity of the supplies furnished by plaintiff. By order dated August 22, 2007, the court granted plaintiff’s motion for summary judgment. Judgment was subsequently entered pursuant to the order. The instant appeal by defendant ensued.

On appeal, defendant argues that the affidavit of plaintiff’s billing manager and corporate officer, submitted in support of plaintiff’s 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 its prima facie case. We agree. The affidavit submitted by plaintiff’s billing manager and corporate officer was insufficient to establish that he 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 Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists, 2007], affd 55 AD3d 644 [2008]; 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 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d [*2]44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.
Decision Date: February 13, 2009