February 7, 2007

Vista Surgical Supplies, Inc. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50245(U))

https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-progressive-cas-ins-co-2007-ny-slip-op-50245u/

Court: Appellate Term, Second Department
Decided: February 7, 2007
Citation: 2007 NY Slip Op 50245(U) · 14 Misc 3d 137(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 Progressive Cas. Ins. Co., 14 Misc 3d 137(A), 2007 NY Slip Op 50245(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's motion for summary judgment on assigned no-fault claims was denied for failure to make a prima facie showing. The Appellate Term, Second Department, affirmed, agreeing that the moving papers were insufficient and citing Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. A separate concurrence agreed with the result while expressing disagreement with propositions in the cited case.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50245(U))

[*1]

Vista Surgical Supplies, Inc. v Progressive Cas. Ins. Co.

2007 NY Slip Op 50245(U) [14 Misc 3d 137(A)]

Decided on February 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 7, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2005-1995 K C. NO. 2005-1995 K C

Vista Surgical Supplies, Inc. a/a/o Caroline N. Bailey-Jones, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 21, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, the court below denied plaintiff’s motion for summary judgment on the ground that plaintiff failed to make a prima facie showing of its entitlement to summary judgment. Contrary to plaintiff’s contention, we agree with the court below that plaintiff’s moving papers were insufficient (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Accordingly, the order is affirmed.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to follow certain propositions of law
set forth in the case cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: February 7, 2007

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

Agreed the provider's moving papers were insufficient to make a prima facie showing, relying on the business-records foundation rule.

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

A label shows how this decision treated the case it cites.

Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe 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

Vista Surgical Supplies, Inc. v Progressive Cas. (2007 NY Slip Op 50695(U))The provider's summary judgment proof failed because its corporate officer did not establish a foundation for the attached business records.
Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50939(U))The provider failed to establish a prima facie case because its officer's affidavit lacked a sufficient business-records foundation.
Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 51608(U))The provider failed to establish a business-records foundation for the documents supporting its summary judgment motion.
Vista Surgical Supplies, Inc. v GEICO Ins. Co. (2007 NY Slip Op 50367(U))The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation.
Vista Surgical Supplies, Inc. v American Tr. Ins. Co. (2006 NY Slip Op 52470(U))The provider failed to prove claim submission in its moving papers and could not supply that essential element through inadmissible reply material.