October 3, 2007

JSI Expert Servs., Inc. v Travelers Ins. Co. (2007 NY Slip Op 51974(U))

Headnote

The court considered the fact that JSI Expert Services, Inc. was seeking to recover assigned first-party no-fault benefits in this case. They also considered that the 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 to the motion. The main issue decided in this case was whether the affidavit executed by plaintiff's employee was sufficient to establish that the 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. The holding of the case was that the affidavit submitted by plaintiff's employee was insufficient to establish that said officer possessed personal knowledge of plaintiff's practices and procedures, and therefore failed to make a prima facie showing of its entitlement to summary judgment. The court affirmed the denial of plaintiff's motion for summary judgment.

Reported in New York Official Reports at JSI Expert Servs., Inc. v Travelers Ins. Co. (2007 NY Slip Op 51974(U))

JSI Expert Servs., Inc. v Travelers Ins. Co. (2007 NY Slip Op 51974(U)) [*1]

JSI Expert Servs., Inc. v Travelers Ins. Co.

2007 NY Slip Op 51974(U) [17 Misc 3d 129(A)]

Decided on October 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 3, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-273 K C.

JSI Expert Services, Inc. a/a/o ROMEL AUDIGE, Appellant,
against
Travelers Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered May 27, 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 “true and correct cop[ies]
of what was sent to Defendant.” The court below denied the motion on the ground that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s employee was legally insufficient. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s employee 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York [*2]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 Belen, JJ., concur.
Decision Date: October 03, 2007