May 25, 2007

IVB Med. Supply, Inc. v Allstate Ins. Co. (2007 NY Slip Op 51081(U))

Headnote

The main issue in this case was whether IVB Medical Supply, Inc. was entitled to summary judgment in a case to recover assigned first-party no-fault benefits. The court considered the affidavit submitted by the plaintiff's corporate officer in support of the motion, which failed to lay a proper foundation for the documents annexed to plaintiff's moving papers. The court held that the affidavit 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. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment and the motion for summary judgment was properly denied. Therefore, the order denying plaintiff's motion for summary judgment was affirmed.

Reported in New York Official Reports at IVB Med. Supply, Inc. v Allstate Ins. Co. (2007 NY Slip Op 51081(U))

IVB Med. Supply, Inc. v Allstate Ins. Co. (2007 NY Slip Op 51081(U)) [*1]

IVB Med. Supply, Inc. v Allstate Ins. Co.

2007 NY Slip Op 51081(U) [15 Misc 3d 142(A)]

Decided on May 25, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-758 Q C.

IVB Medical Supply, Inc. a/a/o George Smith, Appellant,
against
Allstate Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered March 6, 2006. 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 moved for summary judgment. The court below denied the motion on the ground that defendant’s opposing papers demonstrated the existence of a triable issue of fact. Plaintiff appeals from the denial of its motion for summary judgment.

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 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 York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: May 25, 2007