March 10, 2008

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

Headnote

The relevant facts of the case were that Vista Surgical Supplies, Inc. was seeking to recover assigned first-party no-fault benefits from Utica Mutual Insurance Company. The court denied Vista Surgical's motion for summary judgment, finding that Utica Mutual had raised an issue of fact by demonstrating that its time to pay or deny the claim was tolled due to timely verification requests. On appeal, Utica Mutual asserted that the affidavit by Vista Surgical's corporate officer failed to lay a proper foundation for the documents submitted with their motion, and therefore failed to establish a prima facie case. The court agreed that the affidavit was insufficient to establish the officer's personal knowledge of Vista Surgical's practices and procedures, and as a result, Vista Surgical failed to make a prima facie showing of entitlement to summary judgment. The court affirmed the order denying Vista Surgical's motion for summary judgment, albeit on different grounds. In this case, the main issue decided was whether Vista Surgical Supplies, Inc. was entitled to summary judgment in their action to recover assigned first-party no-fault benefits from Utica Mutual Insurance Company. The holding of the case was that Vista Surgical failed to make a prima facie showing of entitlement to summary judgement, as their corporate officer's affidavit did not lay a proper foundation for the documents submitted with their motion. Therefore, the court affirmed the denial of summary judgment in favor of Vista Surgical, based on these grounds.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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.