November 21, 2007

V.S. Med. Servs., P.C. v Farm Family Ins. (2007 NY Slip Op 52287(U))

Headnote

The court considered the appeal of a judgment entered in favor of V.S. Medical Services, P.C., as assignee of Clara Crespo, against Farm Family Insurance. The main issue in the case was whether the affidavit submitted by V.S. Medical Services' corporate officer laid a proper foundation for the admission of documents annexed to the moving papers, in order to establish a prima facie case for summary judgment. The court held that the affidavit submitted was insufficient to show that the officer had personal knowledge of the company's practices and procedures, and therefore, failed to establish a prima facie case for summary judgment. As a result, the judgment in favor of V.S. Medical Services was reversed, and their motion for summary judgment was denied. The court did not address any other issues in light of this decision.

Reported in New York Official Reports at V.S. Med. Servs., P.C. v Farm Family Ins. (2007 NY Slip Op 52287(U))

V.S. Med. Servs., P.C. v Farm Family Ins. (2007 NY Slip Op 52287(U)) [*1]

V.S. Med. Servs., P.C. v Farm Family Ins.

2007 NY Slip Op 52287(U) [17 Misc 3d 136(A)]

Decided on November 21, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: :PESCE, P.J., RIOS and BELEN, JJ
2006-1361 Q C.

V.S. Medical Services, P.C. as assignee of Clara Crespo, Respondent,
against
Farm Family Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered April 6, 2005, deemed an appeal from a judgment entered June 29, 2006 (CPLR 5520 [c]). The judgment, entered pursuant to the April 6, 2005 order granting plaintiff’s motion for reargument and, upon reargument, granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,424.81.

Judgment reversed without costs, so much of the order as, upon granting plaintiff’s motion for reargument, granted 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 denied plaintiff’s motion for summary judgment. Thereafter, the court granted plaintiff’s motion for reargument and, upon reargument, granted plaintiff’s motion for summary judgment. A judgment was subsequently entered. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate 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 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 of its entitlement to summary judgment (see 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]; [*2]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 is denied.

In light of the foregoing, we reach no other issue.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: November 21, 2007