March 28, 2007

Midwood Med. Equip. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50670(U))

Headnote

The court considered the facts of a case where a provider was seeking to recover first-party no-fault benefits. The provider moved for summary judgment and supported their motion with an affirmation from their counsel, an affidavit by a corporate officer, and various documents. However, the affidavit by the corporate officer was found to be insufficient in laying a proper foundation for the documents annexed to the motion papers. The court held that the officer failed to establish personal knowledge of the provider's practices and procedures, therefore failing to make a prima facie showing of entitlement to summary judgment. As a result, the branch of the order granting the provider's motion for summary judgment was reversed, and the motion was denied. The main issue decided was whether the provider had established a prima facie case for entitlement to summary judgment, and the holding of the court was that they had not, and therefore the motion for summary judgment was denied.

Reported in New York Official Reports at Midwood Med. Equip. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50670(U))

Midwood Med. Equip. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50670(U)) [*1]

Midwood Med. Equip. Supply, Inc. v NY Cent. Mut. Fire Ins. Co.

2007 NY Slip Op 50670(U) [15 Misc 3d 131(A)]

Decided on March 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 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
2006-353 K C.

Midwood Medical Equipment Supply, Inc. a/a/o VALERI STOGNEEV, VALERIY MELNICHUK and VIATCHESLAV BACHKIN, Respondent,
against
NY Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered December 15, 2005. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment denied.

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 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. The court below granted the motion and the instant appeal by defendant ensued.

On appeal, defendant contends 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. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer [*2]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. Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the branch of the order which granted plaintiff’s motion for summary judgment is reversed and plaintiff’s motion for summary judgment denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007