May 25, 2007

V.S. Med. Servs., P.C. v New York Cent. Mut. Ins. (2007 NY Slip Op 51080(U))

Headnote

The court considered the fact that V.S. Medical Services, P.C. was seeking to recover assigned first-party no-fault benefits from New York Central Mutual Insurance, but their motion for summary judgment was denied by the Civil Court of New York. The main issue decided was whether there was an issue of fact as to whether V.S. Medical Services used an improper code in their billing. The holding of the court was that the affidavit submitted by V.S. Medical Services' corporate officer was insufficient to establish personal knowledge of the company's practices and procedures, and therefore failed to make a prima facie showing of entitlement to summary judgment. As a result, the lower court's denial of their motion for summary judgment was affirmed.

Reported in New York Official Reports at V.S. Med. Servs., P.C. v New York Cent. Mut. Ins. (2007 NY Slip Op 51080(U))

V.S. Med. Servs., P.C. v New York Cent. Mut. Ins. (2007 NY Slip Op 51080(U)) [*1]

V.S. Med. Servs., P.C. v New York Cent. Mut. Ins.

2007 NY Slip Op 51080(U) [15 Misc 3d 142(A)]

Decided on May 25, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-654 Q C.

V.S. Medical Services, P.C. as assignee of Luisa Grazar, Appellant,
against
New York Central Mutual Insurance, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered January 19, 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, the court denied plaintiff’s motion for summary judgment finding that there was an issue of fact as to whether plaintiff’s bill used an improper code. The instant appeal by plaintiff ensued.

On appeal, defendant asserts 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. 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]; 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 was properly denied, albeit on other grounds.
Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: May 25, 2007