March 5, 2007

V.S. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50400(U))

Headnote

The main issue in this case was whether the provider, V.S. Medical Services, P.C., was entitled to recover assigned first-party no-fault benefits from Allstate Insurance Co. V.S. Medical Services moved for summary judgment, which was granted by the court below. However, on appeal, Allstate Insurance Co. argued that the affidavit submitted by V.S. Medical Services' corporate officer failed to lay a proper foundation for the documents annexed to their moving papers, and therefore, they did not establish a prima facie case. The appellate court agreed with Allstate Insurance Co., finding that the affidavit was insufficient to establish that the officer possessed personal knowledge of V.S. Medical Services' practices and procedures to lay a foundation for the admission of the documents as business records. As a result, V.S. Medical Services failed to make a prima facie showing that they submitted their claim forms to Allstate Insurance Co., and the judgment in their favor was reversed, the order granting summary judgment was vacated, and V.S. Medical Services' motion was denied.

Reported in New York Official Reports at V.S. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50400(U))

V.S. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50400(U)) [*1]

V.S. Med. Servs., P.C. v Allstate Ins. Co.

2007 NY Slip Op 50400(U) [14 Misc 3d 145(A)]

Decided on March 5, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2006-27 Q C.

V.S. Medical Services, P.C. as assignee of Ethel Reid, Respondent,
against
Allstate Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered August 16, 2005, deemed an appeal from a judgment entered on November 29, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 16, 2005 order granting plaintiff summary judgment, awarded plaintiff the principal sum of $4,289.15.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted the motion and the instant appeal by defendant ensued.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, 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 affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer 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 that it submitted its claim forms to defendant thereby entitling it to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., Misc 3d [A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., Misc 3d , 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, the judgment is reversed, the [*2]order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion is denied.

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: March 5, 2007