February 27, 2009

Velen Med. Supply, Inc. v Country-Wide Ins. Co. (2009 NY Slip Op 50343(U))

https://www.beynensonlaw.com/case-law/velen-med-supply-inc-v-country-wide-ins-co-2009-ny-slip-op50343u/

Court: Appellate Term, Second Department
Decided: February 27, 2009
Citation: 2009 NY Slip Op 50343(U) · 22 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Velen Med. Supply, Inc. v Country-Wide Ins. Co., 22 Misc 3d 138(A), 2009 NY Slip Op 50343(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's billing-manager affidavit failed to establish a business-record foundation for the documents supporting summary judgment. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portion of the order granting its motion, denied the motion, and remanded for further proceedings. The affidavit did not sufficiently demonstrate the billing manager's personal knowledge of the provider's practices and procedures to support admission of the annexed documents as business records. Without admissible supporting documents, the provider failed to establish prima facie entitlement to summary judgment. The insurer raised no issue concerning the denial of its own cross motion, which remained undisturbed.

Reported in New York Official Reports at Velen Med. Supply, Inc. v Country-Wide Ins. Co. (2009 NY Slip Op 50343(U))

[*1]

Velen Med. Supply, Inc. v Country-Wide Ins. Co.

2009 NY Slip Op 50343(U) [22 Misc 3d 138(A)]

Decided on February 27, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2007-1406 Q C.

Velen Medical Supply, Inc. as assignee of JOHANNA TYSON, Respondent,
against
Country-Wide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 13, 2007, deemed from a judgment of the same court entered August 30, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 13, 2007 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,131.

Judgment reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the Civil Court for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant argues that the affidavit by plaintiff’s billing manager, 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 billing manager was insufficient to demonstrate that she possessed personal knowledge of plaintiff’s [*2]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]). Consequently, the judgment is reversed, so much of the
order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied. We note that no issue is raised with respect to the denial of defendant’s cross motion for summary judgment.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: February 27, 2009

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved

Reversed summary judgment for the provider because its billing manager's affidavit did not show personal knowledge of the provider's practices sufficient to lay a business-records foundation for the annexed documents.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category.

Cited in this decision

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2007 NY Slip Op 51161(U))The providers' billing manager failed to lay a business-records foundation for their partial summary judgment motion.
Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)The providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U))The insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.

Similar decisions

Velen Med. Supply, Inc. v GEICO Ins. Co. (2009 NY Slip Op 50735(U))The insurer's affirmed peer review raised a medical-necessity issue, and the provider waived its objection to the stamped signature.
V.S. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50400(U))The provider failed to prove claim submission because its corporate officer's affidavit lacked a sufficient business-records foundation.
V.S. Med. Servs., P.C. v New York Cent. Mut. Ins. (2007 NY Slip Op 51080(U))The provider's summary judgment motion failed because its officer's affidavit did not establish a business-records foundation.
V.S. Med. Servs., P.C. v Farm Family Ins. (2007 NY Slip Op 52287(U))The provider's summary judgment proof lacked a proper business-record foundation because its officer's personal knowledge was not established.
IVB Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51660(U))The provider failed to prove submission of its claim, and its appeal from an unopposed discovery order was dismissed.