October 12, 2011

PMR Physical Therapy v GEICO Gen. Ins. Co. (2011 NY Slip Op 51852(U))

Headnote

The relevant facts of the case are that PMR Physical Therapy, as the assignee of Kelly Ortega, appealed to recover first-party no-fault benefits from GEICO General Insurance Company. The main issue decided by the court was whether PMR's motion for summary judgment was correctly denied. The court held that PMR's motion was properly denied, as it failed to make a prima facie showing of its entitlement to summary judgment. The court found that the affidavit submitted in support of PMR's motion did not demonstrate personal knowledge of PMR's business practices, and therefore did not constitute admissible evidence. As a result, the court affirmed the order denying PMR's motion for summary judgment.

Reported in New York Official Reports at PMR Physical Therapy v GEICO Gen. Ins. Co. (2011 NY Slip Op 51852(U))

PMR Physical Therapy v GEICO Gen. Ins. Co. (2011 NY Slip Op 51852(U)) [*1]

PMR Physical Therapy v GEICO Gen. Ins. Co.

2011 NY Slip Op 51852(U) [33 Misc 3d 129(A)]

Decided on October 12, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-433 K C.

PMR Physical Therapy as Assignee of KELLY ORTEGA, Appellant,
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 30, 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 appeals from an order denying its unopposed motion for summary judgment.

“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” (PMR Physical Therapy v Country-Wide Ins. Co., 20 Misc 3d 127[A], 2010 NY Slip Op 51729[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 12, 2011