Nagle Med. Plaza, P.C. v Allstate Ins. Co. (2008 NY Slip Op 50349(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 28, 2006, deemed from a judgment entered on December 8, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 28, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,532.04.

Judgment reversed without costs, so much of the order entered September 28, 2006 as granted plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. A judgment was subsequently entered. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s president, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of 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 president 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 Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud [*2]Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.

Turning to the merits of defendant’s cross motion for summary judgment, we are of the opinion that the court below correctly denied same. Defendant argued that plaintiff was ineligible to receive reimbursement for no-fault benefits since at the time that the services billed for were rendered, plaintiff was a fraudulently incorporated
professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). In support of said contention, defendant annexed the transcript of an examination under oath of plaintiff’s owner. While said individual denied knowledge of many aspects of the everyday operations of plaintiff, his testimony was inadequate to establish, as a matter of law, that plaintiff is ineligible for reimbursement of no-fault benefits on the ground that plaintiff’s business manager, a non-physician, was the true owner of plaintiff (see id.; Boston Post Rd. Med. Imaging, P.C. v Progressive Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51173[U] [App Term, 9th & 10th Jud Dists 2007]). Accordingly, the court below properly denied defendant’s cross motion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 2008