April 2, 2007

Vista Surgical Supplies, Inc. v GEICO Ins. Co. (2007 NY Slip Op 50688(U))

Headnote

The relevant facts considered by the court were that Vista Surgical Supplies, Inc. was seeking to recover assigned first-party no-fault benefits from GEICO Insurance Co. The motion for summary judgment made by Vista was supported by an affirmation from their counsel, an affidavit by an officer of the company, and various documents. However, the court found that the affidavit by the company's officer was insufficient to establish personal knowledge of the company's practices and procedures, and therefore the documents could not be admitted as business records. As a result, the court denied Vista's motion for summary judgment. The main issue decided was whether Vista had made a prima facie showing of its entitlement to summary judgment, which the court found they had not. The holding was that Vista failed to make a prima facie showing of its entitlement to summary judgment, and therefore the motion was properly denied.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v GEICO Ins. Co. (2007 NY Slip Op 50688(U))

Vista Surgical Supplies, Inc. v GEICO Ins. Co. (2007 NY Slip Op 50688(U)) [*1]

Vista Surgical Supplies, Inc. v GEICO Ins. Co.

2007 NY Slip Op 50688(U) [15 Misc 3d 132(A)]

Decided on April 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 2, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-641 K C.

Vista Surgical Supplies, Inc. a/a/o SUZANNE WILLIAMSON, Appellant,
against
GEICO Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered January 25, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, 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 an 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. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s officer was insufficient to submit proof in admissible form. The court below denied the motion on
the ground that plaintiff failed to make a prima facie case. Plaintiff appeals from so much of the order as denied 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 was properly denied. [*2]

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 02, 2007