January 9, 2009

Union Physician Healthcare, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 50039(U))

https://www.beynensonlaw.com/case-law/union-physician-healthcare-p-c-v-utica-mut-ins-co-2009-ny-slip-op50039u/

Court: Appellate Term, Second Department
Decided: January 9, 2009
Citation: 2009 NY Slip Op 50039(U) · 22 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Union Physician Healthcare, P.C. v Utica Mut. Ins. Co., 22 Misc 3d 128(A), 2009 NY Slip Op 50039(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider failed to establish entitlement to summary judgment because its officer's affidavit lacked a business-record foundation. In an action for assigned no-fault benefits, the insurer challenged the affidavit supporting the provider's motion. The affidavit did not sufficiently demonstrate the officer's personal knowledge of the provider's practices and procedures to permit admission of the attached documents as business records. The provider therefore failed to make a prima facie showing. The Appellate Term, Second Department, reversed the judgment for the provider, vacated the order granting summary judgment, and denied the provider's motion, sustaining the insurer's appeal.

Reported in New York Official Reports at Union Physician Healthcare, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 50039(U))

[*1]

Union Physician Healthcare, P.C. v Utica Mut. Ins. Co.

2009 NY Slip Op 50039(U) [22 Misc 3d 128(A)]

Decided on January 9, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.

Decided on January 9, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-1666 K C.

Union Physician Healthcare, P.C. as assignee of CHRISTOPHER KELLY, Respondent,
against
Utica Mutual Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered June 22, 2006, deemed from a judgment of the same court entered August 10, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 22, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,757.32.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant asserts that the affidavit by plaintiff’s officer, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s officer was insufficient to demonstrate 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. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 55 AD3d 644 [2008]; Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). [*2]Consequently, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: January 09, 2009

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved

Held the provider failed its prima facie case because its officer's affidavit did not show personal knowledge of the provider's practices and procedures sufficient to admit the annexed documents as business records.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 990 decisions on this question in the Second Department courts and the Court of Appeals, 206 (this one included) are in the same category.

Cited in this decision

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2007 NY Slip Op 51161(U))The providers' billing manager failed to lay a business-records foundation for their partial summary judgment motion.
Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)The providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U))The insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.

Similar decisions

Union Physician Health Care, P.C. v American Mfrs. Mut. Ins. Co. (2007 NY Slip Op 51505(U))The provider's officer failed to lay a business-records foundation for the documents supporting summary judgment.
Careplus Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 51132(U))The provider failed to establish its prima facie case because its affidavit did not establish admissibility of the supporting documents.
Bedford Park Med. Practice, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50289(U))The provider's cross motion for summary judgment failed because its corporate officer did not lay a business-record foundation.
Focus Radiology, P.C. v Utica Mut. Ins. Co. (2008 NY Slip Op 52050(U))The provider failed to establish a prima facie case because its employee's affidavit did not identify the annexed documents as business records.
A.B. Med. Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 51859(U))The insurer's investigators established a founded belief that the assignor's injuries did not arise from an insured incident.