June 12, 2008

Infinity Health Prods. v Amex Assur. Co. (2008 NY Slip Op 51233(U))

https://www.beynensonlaw.com/case-law/infinity-health-prods-v-amex-assur-co-2008-ny-slip-op-51233u/

Court
Appellate Term, Second Department
Decided
June 12, 2008
Citation
2008 NY Slip Op 51233(U) · 20 Misc 3d 126(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Provider's prima facie case
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
Infinity Health Prods. v Amex Assur. Co., 20 Misc 3d 126(A), 2008 NY Slip Op 51233(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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.

The provider's billing manager's affidavit failed to establish a business-records foundation for its summary judgment documents. The affidavit did not sufficiently establish personal knowledge of the provider's practices and procedures, leaving the provider without a prima facie showing of entitlement to assigned no-fault benefits. The Appellate Term, Second Department, reversed the judgment, vacated the order granting summary judgment, and denied the provider's motion; the majority reached no other issue. A separate concurrence agreed with the result because the insurer had raised triable issues of fact.

Reported in New York Official Reports at Infinity Health Prods. v Amex Assur. Co. (2008 NY Slip Op 51233(U))

[*1]
Infinity Health Prods. v Amex Assur. Co.
2008 NY Slip Op 51233(U) [20 Misc 3d 126(A)]
Decided on June 12, 2008
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2008
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2007-754 Q C. NO. 2007-754 Q C

Infinity Health Products as assignee of Cecelia Morgan, Respondent,

against

Amex Assurance Company, Appellant.


Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 20, 2007, deemed from a judgment of the same court entered April 6, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 20, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,717.03.


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, the court granted plaintiff’s motion for summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant asserts that the affidavit by plaintiff’s “billing manager and corporate officer,” submitted in support of plaintiff’s motion for summary judgment, 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 “billing manager and corporate officer” was insufficient to establish that said person 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 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the
judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In view of the foregoing, we reach no other issue.

Pesce, P.J., and Golia, J., concur.

Steinhardt, J., concurs in a separate memorandum.

Steinhardt, J., concurs in the result in the following memorandum:

While I agree with the result reached by the majority, I do so for other reasons. I find that defendant has come forward with triable issues of fact sufficient to defeat plaintiff’s motion for summary judgment.
Decision Date: June 12, 2008

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