November 20, 2007

Walter Karpinski Acupuncture, P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 52280(U))

https://www.beynensonlaw.com/case-law/walter-karpinski-acupuncture-p-c-v-progressive-cas-ins-co-2007-ny-slip-op52280u/

Court
Appellate Term, Second Department
Decided
November 20, 2007
Citation
2007 NY Slip Op 52280(U) · 17 Misc 3d 135(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
Walter Karpinski Acupuncture, P.C. v Progressive Cas. Ins. Co., 17 Misc 3d 135(A), 2007 NY Slip Op 52280(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 through an officer's conclusory assertion that attached documents were business records. In seeking summary judgment for assigned no-fault benefits, the provider submitted an attorney affirmation, an officer's affidavit and supporting documents. The insurer challenged the foundation for those documents. The affidavit did not establish the officer's personal knowledge of the provider's practices and procedures sufficient to admit them as business records. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed the denial of the provider's motion.

Reported in New York Official Reports at Walter Karpinski Acupuncture, P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 52280(U))

[*1]
Walter Karpinski Acupuncture, P.C. v Progressive Cas. Ins. Co.
2007 NY Slip Op 52280(U) [17 Misc 3d 135(A)]
Decided on November 20, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS


PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1902 K C.
Walter Karpinski Acupuncture, P.C. a/a/o Mona Petion, Appellant,

against

Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered August 24, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed with $10 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 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.

Since the affidavit submitted by plaintiff’s 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 (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]

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 20, 2007

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