May 7, 2007

Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50939(U))

https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-new-york-cent-mut-fire-ins-co-2007-ny-slip-op-50939u/

Court
Appellate Term, Second Department
Decided
May 7, 2007
Citation
2007 NY Slip Op 50939(U) · 15 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
Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 138(A), 2007 NY Slip Op 50939(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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 failed to establish a prima facie case because its officer's affidavit lacked a sufficient business-records foundation. Civil Court denied summary judgment because the moving papers did not allege personal knowledge of mailing the claims. On appeal, the insurer challenged the foundation for the documents annexed to the motion. The Appellate Term, Second Department, agreed that the corporate officer's affidavit failed to establish personal knowledge of the provider's practices and procedures sufficient to admit those documents as business records. It affirmed the denial of the provider's motion on that basis.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50939(U))

[*1]
Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co.
2007 NY Slip Op 50939(U) [15 Misc 3d 138(A)]
Decided on May 7, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 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
2006-341 K C.
Vista Surgical Supplies, Inc. a/a/o Taiye Nelson, Appellant,

against

New York Central Mutual Fire 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 24, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover first-party no-fault benefits, plaintiff moved for summary judgment. The court below denied the motion on the ground that plaintiff’s moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its motion for summary judgment.

On appeal, defendant asserts that the affidavit of 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. 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.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: May 7, 2007

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