August 16, 2007

V.S. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 51615(U))

Headnote

The relevant facts in this case revolved around V.S. Medical Services, P.C. seeking to recover first-party no-fault benefits from Allstate Insurance Co. The provider's motion for summary judgment was supported by an affirmation from plaintiff's counsel, an affidavit by a corporate officer, and various documents. However, the court denied the motion as the affidavit did not establish that the officer had personal knowledge of the plaintiff's practices and procedures to lay a foundation for the admission of the documents as business records. As a result, the main issue decided was whether the plaintiff had made a prima facie showing of entitlement to summary judgment. The holding of the case was that the plaintiff's motion for summary judgment was properly denied, as they failed to establish their entitlement to it due to the insufficiency of the affidavit.

Reported in New York Official Reports at V.S. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 51615(U))

V.S. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 51615(U)) [*1]

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

2007 NY Slip Op 51615(U) [16 Misc 3d 136(A)]

Decided on August 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT:: PESCE, P.J., RIOS and BELEN, JJ
2006-954 Q C.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered March 21, 2006. 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 a corporate officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer 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 failed to make a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., 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 [*2]was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007