June 29, 2007

Psychological Practice, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51304(U))

Headnote

The main issue in this case was whether the plaintiff, Psychological Practice, P.C., was entitled to summary judgment in a lawsuit to recover assigned first-party no-fault benefits from NY Central Mutual Fire Ins. Co. The court considered the sufficiency of the affidavit submitted by the plaintiff's owner, which stated conclusorily that the documents attached to the motion papers were plaintiff's business records. The court found that the affidavit was insufficient to establish the owner's personal knowledge of the plaintiff's practices and procedures, and therefore failed to lay a foundation for the admission of the documents as business records. As a result, the plaintiff failed to make a prima facie showing of its entitlement to summary judgment, and the denial of the motion for summary judgment was affirmed. Therefore, the holding of the case was that the plaintiff's motion for summary judgment was properly denied.

Reported in New York Official Reports at Psychological Practice, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51304(U))

Psychological Practice, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51304(U)) [*1]

Psychological Practice, P.C. v NY Cent. Mut. Fire Ins. Co.

2007 NY Slip Op 51304(U) [16 Misc 3d 129(A)]

Decided on June 29, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-508 K C.

Psychological Practice, P.C. a/a/o Barbara Williams-Clarke, Appellant,
against
NY Central Mutual Fire Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 29, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

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 plaintiff’s owner, and various documents annexed thereto. The affidavit executed by plaintiff’s owner stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. The court below
denied the motion on the ground that plaintiff’s owner failed to set forth his job duties or the basis for his personal knowledge, if any, of plaintiff’s billing procedures so as to lay a foundation for the admission of plaintiff’s business records. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s owner was insufficient to establish that he 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 [*2]Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Dan Medical, 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.

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

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: June 29, 2007