April 3, 2007

Preferred Med. Imaging, P.C. v Countrywide Ins. Co. (2007 NY Slip Op 50693(U))

Headnote

The court considered a case in which a medical provider sought to recover first-party no-fault benefits, with the provider's motion for summary judgment being supported by an affirmation from their counsel, an affidavit from an employee, and various documents. The defendant argued that the affidavit failed to lay a proper foundation for the documents, and thus the plaintiff did not establish a prima facie case. The main issue was whether the plaintiff made a prima facie showing of their entitlement to summary judgment, and whether the defendant was entitled to summary judgment. The holding of the court was that the plaintiff failed to make a prima facie showing of their entitlement to summary judgment, and thus their motion for summary judgment was denied. The defendant was also not entitled to summary judgment, as there was no proof that their denials were timely issued.

Reported in New York Official Reports at Preferred Med. Imaging, P.C. v Countrywide Ins. Co. (2007 NY Slip Op 50693(U))

Preferred Med. Imaging, P.C. v Countrywide Ins. Co. (2007 NY Slip Op 50693(U)) [*1]

Preferred Med. Imaging, P.C. v Countrywide Ins. Co.

2007 NY Slip Op 50693(U) [15 Misc 3d 133(A)]

Decided on April 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 3, 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
2006-344 K C.

Preferred Medical Imaging, P.C. a/a/o WILMA ALMEIDA, GARRY BOODHAN, MYRIAM COLON, MILTON MENDEZ and YOUNG JIN NO, Respondent,
against
Countrywide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), dated December 27, 2005. The order granted plaintiff’s motion for summary judgment.

Order 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 an employee of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s employee stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s employee 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 court granted plaintiff’s motion for summary judgment and this appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to plaintiff’s moving papers. Inasmuch as the affidavit submitted by plaintiff’s employee was insufficient to establish that said employee possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents [*2]annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff’s motion for summary judgment should have been denied.

To the extent defendant asks this court to search the record and grant it summary judgment, defendant is not entitled to such relief since, among other things, the record does not contain any proof that defendant’s denials were timely issued.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.