April 26, 2007

Med-Tech Prod., Inc. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50876(U))

Headnote

The relevant facts considered by the court in this case include the plaintiff's motion for summary judgment to recover assigned first-party no-fault benefits, which was supported by an affirmation of the plaintiff's counsel, an affidavit by a corporate officer of the plaintiff, and various documents attached to the motion papers. The defendant argued that the affidavit by the plaintiff's corporate officer failed to demonstrate personal knowledge of the facts set forth therein, and as a result, plaintiff failed to establish a prima facie case. The main issue decided by the court was whether the affidavit submitted by the plaintiff's corporate officer was sufficient to establish that the officer possessed personal knowledge of the plaintiff's practices and procedures to lay a foundation for the admissibility of the documents as business records. The court held that the affidavit was insufficient to establish personal knowledge, and therefore, plaintiff failed to make a prima facie showing of its entitlement to summary judgment. As a result, the motion for summary judgment was properly denied. Ultimately, the holding of the case was that the plaintiff failed to establish a prima facie case for summary judgment, and the denial of the motion for summary judgment was affirmed by the court.

Reported in New York Official Reports at Med-Tech Prod., Inc. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50876(U))

Med-Tech Prod., Inc. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50876(U)) [*1]

Med-Tech Prod., Inc. v Liberty Mut. Ins. Co.

2007 NY Slip Op 50876(U) [15 Misc 3d 137(A)]

Decided on April 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-497 K C.

Med-Tech Product, Inc. a/a/o Jeffrey Collins, Appellant,
against
Liberty Mutual Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 29, 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 of plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s corporate officer failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as 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 admissibility, 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 (see 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 Rios, JJ., concur. [*2]
Decision Date: April 26, 2007