June 8, 2009

Post Traumatic Med. Care, P.C. v Travelers Home & Mar. Ins. Co. (2009 NY Slip Op 51149(U))

Headnote

The court considered the fact that Post Traumatic Medical Care, P.C. was seeking to recover no-fault benefits from The Travelers Home and Marine Insurance Company. The main issue decided was whether plaintiff's affidavit was sufficient to establish personal knowledge and lay a foundation for the admission of documents as business records. The holding of the case was that the affidavit submitted by plaintiff's medical billing manager was insufficient to establish personal knowledge of plaintiff's practices and procedures, therefore failing to make a prima facie showing of entitlement to summary judgment. As a result, the Civil Court's decision to deny plaintiff's motion for summary judgment was affirmed.

Reported in New York Official Reports at Post Traumatic Med. Care, P.C. v Travelers Home & Mar. Ins. Co. (2009 NY Slip Op 51149(U))

Post Traumatic Med. Care, P.C. v Travelers Home & Mar. Ins. Co. (2009 NY Slip Op 51149(U)) [*1]

Post Traumatic Med. Care, P.C. v Travelers Home & Mar. Ins. Co.

2009 NY Slip Op 51149(U) [23 Misc 3d 147(A)]

Decided on June 8, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-1283 K C.

Post Traumatic Medical Care, P.C. a/a/o GEORGE FERRER, Appellant,
against
The Travelers Home and Marine Insurance Company a/k/a TRAVELERS PROPERTY CASUALTY CORPORATION, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered July 11, 2007. The order denied plaintiff’s motion for summary judgment.

Order affirmed with $10 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 motion on the ground that plaintiff’s affidavit was insufficient. This appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff’s medical billing manager was insufficient to establish that said person 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; 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]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: June 08, 2009