March 10, 2008

Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2008 NY Slip Op 50524(U))

https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-utica-mut-ins-co-2008-ny-slip-op50524u/

Court
Appellate Term, Second Department
Decided
March 10, 2008
Citation
2008 NY Slip Op 50524(U) · 19 Misc 3d 129(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 Utica Mut. Ins. Co., 19 Misc 3d 129(A), 2008 NY Slip Op 50524(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 its prima facie case because its officer's affidavit lacked a foundation for the billing records. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion on that ground. The affidavit did not establish the officer's personal knowledge of the provider's practices and procedures sufficient to admit the attached documents as business records. Although the lower court had relied on verification requests tolling the insurer's payment deadline, the appellate court affirmed on the provider's failure of proof instead.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2008 NY Slip Op 50524(U))

[*1]
Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co.
2008 NY Slip Op 50524(U) [19 Misc 3d 129(A)]
Decided on March 10, 2008
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS


PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2007-352 K C.
Vista Surgical Supplies, Inc. a/a/o Robert Zalazar, Appellant,

against

Utica Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered January 16, 2007. 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 defendant raised an issue of fact by demonstrating that its time to pay or deny plaintiff’s claim was tolled due to timely verification requests. The instant appeal by plaintiff ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate officer, submitted in support of plaintiff’s 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 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 order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

Weston Patterson, J.P., Golia and Rios, JJ., concur.

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