January 9, 2009

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

Headnote

The court considered the appeal of a provider seeking to recover assigned first-party no-fault benefits, in which the lower court had granted the provider's motion for summary judgment. The main issue was whether the affidavit submitted by the provider's officer laid a proper foundation for the admission of the documents annexed to the provider's moving papers, and whether the provider had established a prima facie case. The holding of the court was that the affidavit submitted by the provider's officer was insufficient to demonstrate personal knowledge of the provider's practices and procedures, and therefore failed to lay a foundation for the admission of the documents as business records. As a result, the provider failed to make a prima facie showing of entitlement to summary judgment, and the judgment was reversed, the order granting the provider's motion for summary judgment was vacated, and the provider's motion for summary judgment was denied.

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

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As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.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