October 1, 2010

PMR Physical Therapy v Country-Wide Ins. Co. (2010 NY Slip Op 51729(U))

Headnote

The relevant facts considered by the court were that PMR Physical Therapy as the assignee of Jason Moralez, moved for summary judgment to recover assigned first-party no-fault benefits but was denied by the Civil Court. The main issue decided was whether PMR Physical Therapy made a prima facie showing of entitlement to summary judgment. The holding of the court was that PMR Physical Therapy failed to make a prima facie showing of its entitlement to summary judgment because the affidavit in support of their motion did not demonstrate personal knowledge of the plaintiff's business practices and procedures, and therefore, the order denying their motion for summary judgment was affirmed.

Reported in New York Official Reports at PMR Physical Therapy v Country-Wide Ins. Co. (2010 NY Slip Op 51729(U))

PMR Physical Therapy v Country-Wide Ins. Co. (2010 NY Slip Op 51729(U)) [*1]

PMR Physical Therapy v Country-Wide Ins. Co.

2010 NY Slip Op 51729(U) [29 Misc 3d 127(A)]

Decided on October 1, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-1193 K C.

PMR Physical Therapy as Assignee of Jason Moralez, Appellant,
against
Country-Wide Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered March 16, 2009. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The Civil Court denied plaintiff’s unopposed motion, finding that plaintiff had failed to make out a prima facie case. This appeal by plaintiff ensued.

Plaintiff’s motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the documents annexed to plaintiff’s motion papers constituted evidence in admissible form pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the order is affirmed.

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

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: October 01, 2010