May 28, 2009

Triboro Quality Med. Supply, Inc. v Travelers Prop. & Cas. Ins. Co. (2009 NY Slip Op 51082(U))

Headnote

The court considered the denial of the plaintiff's motion for summary judgment in an action to recover assigned first-party no-fault benefits, finding that the affidavit submitted by the plaintiff was insufficient to lay a foundation for the admission of documents as business records. The court also granted the defendant's cross motion for summary judgment, dismissing the complaint on the grounds of lack of medical necessity for the supplies provided, with the plaintiff failing to file any opposition to rebut the defendant's evidence. The main issue decided was whether the plaintiff demonstrated a prima facie entitlement to summary judgment. The holding of the case was that the appeal was dismissed, as the plaintiff did not offer any argument as to why the court should reverse the portion of the order which granted the defendant's cross motion for summary judgment. Ultimately, the outcome of the case would not be altered.

Reported in New York Official Reports at Triboro Quality Med. Supply, Inc. v Travelers Prop. & Cas. Ins. Co. (2009 NY Slip Op 51082(U))

Triboro Quality Med. Supply, Inc. v Travelers Prop. & Cas. Ins. Co. (2009 NY Slip Op 51082(U)) [*1]

Triboro Quality Med. Supply, Inc. v Travelers Prop. & Cas. Ins. Co.

2009 NY Slip Op 51082(U) [23 Misc 3d 143(A)]

Decided on May 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 28, 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
2008-866 K C.

Triboro Quality Medical Supply, Inc. a/a/o DENNIS FRANCISCO and RAFAEL FRANCO, Appellant,
against
Travelers Property and Casualty Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered March 13, 2008. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment, finding that the affidavit plaintiff submitted in support of the motion was insufficient to lay a foundation for the admission, as business records, of the documents annexed to its moving papers. The court granted defendant’s cross motion for summary judgment dismissing the complaint, holding that defendant established the lack of medical necessity for the supplies provided, and noting that “[p]laintiff did not file any opposition to rebut defendant’s evidence.” As limited by its brief, plaintiff appeals from so much of the order as denied its motion for summary judgment, arguing that its motion papers demonstrated a prima facie entitlement to summary judgment.

Inasmuch as plaintiff does not offer any argument as to why this court should reverse the portion of the order which granted defendant’s cross motion for summary judgment, we need not reach the only issue raised by plaintiff, i.e., whether plaintiff established its prima facie entitlement to summary judgment, since the ultimate outcome of the case would, in any event, [*2]not be altered.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 28, 2009