October 2, 2007

Lexington Acupuncture, P.C. v MVAIC (2007 NY Slip Op 51973(U))

https://www.beynensonlaw.com/case-law/lexington-acupuncture-p-c-v-mvaic-2007-ny-slip-op-51973u/

Court: Appellate Term, Second Department
Decided: October 2, 2007
Citation: 2007 NY Slip Op 51973(U) · 17 Misc 3d 129(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

Lexington Acupuncture, P.C. v MVAIC, 17 Misc 3d 129(A), 2007 NY Slip Op 51973(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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 summary judgment award on two assignors' claims was reversed for failure to establish a business-records foundation. MVAIC challenged the supporting employee affidavit on appeal. The affidavit did not demonstrate the employee's personal knowledge of the provider's practices and procedures sufficient to support admission of the documents attached to the motion. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, found that the provider failed to establish prima facie entitlement to summary judgment, reversed the order, and denied its motion on those two causes of action; the court reached no other issue.

Reported in New York Official Reports at Lexington Acupuncture, P.C. v MVAIC (2007 NY Slip Op 51973(U))

[*1]

Lexington Acupuncture, P.C. v MVAIC

2007 NY Slip Op 51973(U) [17 Misc 3d 129(A)]

Decided on October 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-1103 K C.

Lexington Acupuncture, P.C. a/a/o IASHAWN ABRAMS, ARTIE BUCKLEY, NATAKI CROOKS and SOFIYA GOLDBERG, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered March 28, 2006. The order granted plaintiff’s motion for summary judgment upon the causes of action relating to assignors Nataki Crooks and Sofiya Goldberg.

Order reversed without costs and plaintiff’s motion for summary judgment upon the causes of action relating to assignors Nataki Crooks and Sofiya Goldberg denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment upon the causes of action relating to assignors
Nataki Crooks and Sofiya Goldberg. The court below granted plaintiff’s motion and this appeal by defendant ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s employee, 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 employee 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 Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip [*2]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]).

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

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: October 02, 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.

Claimant's prima facie case on motions

Open the full map

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

Reversed summary judgment for the claimant against MVAIC because its employee's affidavit did not show personal knowledge of the claimant's practices sufficient to lay a business-records foundation for the annexed documents.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 990 decisions on this question in the Second Department courts and the Court of Appeals, 206 (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

Liberty Orthopedics, PLLC v Mvaic (2008 NY Slip Op 51533(U))Neither the provider's business-records proof nor MVAIC's challenge to the assignor's qualified-person status warranted summary judgment.
Acupuncture Works, P.C. v MVAIC (2010 NY Slip Op 50646(U))The provider's action against MVAIC was barred by the three-year limitation because later denials did not postpone the payment due date.
20th Ave Acupuncture, P.C. v MVAIC (2013 NY Slip Op 51741(U))MVAIC obtained dismissal of claims paid under the fee schedule, but failed to establish timely denial of one claim.
Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co. (2010 NY Slip Op 50065(U))The provider failed to establish admissible business records through its third-party billing company's employee.
Lexington Acupuncture, P.C. v GEICO Ins. Co. (2008 NY Slip Op 50519(U))The insurer's founded belief that the injuries did not arise from an insured incident defeated the provider's summary judgment motion.