September 2, 2008

Delta Diagnostic Radiology, P.C. v Unitrin Advantage Ins. Co. (2008 NY Slip Op 51854(U))

Headnote

The relevant facts considered by the court were that Delta Diagnostic Radiology, P.C. was seeking to recover first-party no-fault benefits from Unitrin Advantage Insurance Company, and the court granted Delta Diagnostic Radiology's motion for summary judgment. However, Unitrin Advantage Insurance Company appealed the decision, arguing that the affidavit submitted by Delta Diagnostic Radiology's officer did not lay a proper foundation for the admission of the documents annexed to the moving papers, and therefore Delta Diagnostic Radiology failed to establish a prima facie case. The main issue decided by the court was whether Delta Diagnostic Radiology had provided sufficient evidence to demonstrate its entitlement to summary judgment. The court held that the affidavit submitted by Delta Diagnostic Radiology's officer was insufficient to demonstrate personal knowledge of the company's practices and procedures, and thus failed to lay a proper foundation for the admission of the documents annexed to the moving papers. As a result, the court reversed the judgment, vacated the order granting Delta Diagnostic Radiology's motion for summary judgment, and denied Delta Diagnostic Radiology's motion for summary judgment, without costs.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Unitrin Advantage Ins. Co. (2008 NY Slip Op 51854(U))

Delta Diagnostic Radiology, P.C. v Unitrin Advantage Ins. Co. (2008 NY Slip Op 51854(U)) [*1]

Delta Diagnostic Radiology, P.C. v Unitrin Advantage Ins. Co.

2008 NY Slip Op 51854(U) [20 Misc 3d 144(A)]

Decided on September 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 2, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-508 K C.

Delta Diagnostic Radiology, P.C. a/a/o Raymond Ivenson, Respondent,
against
Unitrin Advantage Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered May 30, 2006, deemed from a judgment of the same court entered June 14, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 30, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,839.34.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant asserts that the affidavit by plaintiff’s officer, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of 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 officer was insufficient to demonstrate that he 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 judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied. [*2]

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008