October 2, 2006

Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51879(U))

Headnote

The relevant facts considered by the court were that a health care provider brought an action to recover assigned first-party no-fault benefits. The court found that the attorney's affirmation in support of the motion for summary judgment lacked probative value as it did not lay a sufficient foundation to establish personal knowledge. The court also noted that defendant's opposition to plaintiff's motion for summary judgment demonstrated the existence of a triable issue of fact as to whether the alleged injuries did not arise out of an insured incident. The main issue decided was whether plaintiff's motion for summary judgment was supported by competent evidence to establish a prima facie case, and whether there was a triable issue of fact for the alleged injuries. The holding of the court was that plaintiff's motion for summary judgment was denied, and the order entered September 16, 2005 was vacated.

Reported in New York Official Reports at Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51879(U))

Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51879(U)) [*1]

Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

2006 NY Slip Op 51879(U) [13 Misc 3d 132(A)]

Decided on October 2, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1748 K C.

Midborough Acupuncture, P.C. A/A/O RALPH RODRIGUEZ, MAXIMO URENA, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 16, 2005, deemed an appeal from a judgment of the same court entered May 16, 2006 (see CPLR 5501 [c]). The judgment, which awarded plaintiff the sum of $4,518.30, was entered pursuant to the order entered September 16, 2005 which, upon reargument, adhered to the prior determination granting plaintiff’s motion for summary judgment.

Judgment reversed without costs, order entered September 16, 2005 vacated and, upon reargument, plaintiff’s motion for summary judgment denied.

In this action by a health care provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel and various documents annexed thereto. However, facts set forth in an attorney’s affirmation are of no probative value absent the attorney’s assertion of a basis for his or her personal knowledge of the facts (Zuckerman v City of New York, 49 NY2d 557 [1980]; Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Plaintiff’s counsel did not lay a sufficient foundation to establish that what counsel represented to be plaintiff’s claim forms were admissible under the business records exception to the hearsay rule (see CPLR 4518; see also People v Kennedy, 68 NY2d 569 [*2][1986]; Trotti v Estate of Buchanan, 272 AD2d 660 [2000]; Dayanim v Unis, 171 AD2d 579 [1991]). To the extent defendant may have issued claim denial forms, said claim denials merely established that defendant received claim forms submitted by, or on behalf of plaintiff, but they did not concede the admissibility of the purported claim forms or the facts set forth therein. In light of plaintiff’s counsel’s apparent lack of personal knowledge, plaintiff failed to establish its prima facie entitlement to summary judgment through the submission of competent evidence (CPLR 3212 [b]; see CPLR 4518; People v Kennedy, 68 NY2d 569, supra; Zuckerman v City of New York, 49 NY2d 557, supra; Read v Ellenville Natl. Bank, 20 AD3d 408 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Stahl v Stralberg, 287 AD2d 613 [2001]).

We note that even if plaintiff had established a prima facie case, in the instant matter, defendant’s opposition to plaintiff’s motion for summary judgment amply demonstrated the existence of a triable issue of fact as to whether “the alleged injur[ies] do[] not arise out of an insured incident,” a defense which may be raised for the first time in opposition to plaintiff’s motion for summary judgment (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). As a result, upon reargument, the court should have denied plaintiff’s motion for summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557, supra).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.