April 2, 2007

Preferred Med. Imaging, P.C. v Hudson Ins. Co. (2007 NY Slip Op 50685(U))

Headnote

The court considered the issue of whether the provider in a no-fault benefits case made a prima facie showing to support their motion for summary judgment. The main issue decided was whether the documents annexed to plaintiff's motion papers were admissible as business records, as the affidavit submitted by the plaintiff's employee did not establish the employee's personal knowledge of the plaintiff's practices and procedures. The holding of the case was that plaintiff's motion for summary judgment should have been denied, as they failed to make a prima facie showing of their entitlement to summary judgment. The court also stated that the defendant was not entitled to relief since there was no proof that the defendant's denials were timely issued.

Reported in New York Official Reports at Preferred Med. Imaging, P.C. v Hudson Ins. Co. (2007 NY Slip Op 50685(U))

Preferred Med. Imaging, P.C. v Hudson Ins. Co. (2007 NY Slip Op 50685(U)) [*1]

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

2007 NY Slip Op 50685(U) [15 Misc 3d 132(A)]

Decided on April 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 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
2006-343 K C.

Preferred Medical Imaging, P.C. a/a/o ANTHONY ASHAN, NINA AYZMAN and RONALD JENKINS, Respondent,
against
Hudson Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered January 6, 2006. 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 [*2]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 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.
Decision Date: April 02, 2007