April 14, 2008

Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 50869(U))

Headnote

The court considered the case of Orthotic Surgical & Medical Supply, Inc. v GEICO Ins. Co. where the plaintiff was seeking to recover first-party no-fault benefits. The main issue decided was whether the affidavit submitted by an employee of plaintiff's former attorney laid a proper foundation for the documents annexed to plaintiff's moving papers, and whether the plaintiff failed to establish a prima facie case. The holding of the court was that the affidavit submitted was insufficient to establish that the employee possessed personal knowledge of the plaintiff's practices and procedures, and therefore failed to lay a foundation for the admission of the documents as business records. As a result, the plaintiff failed to make a prima facie showing of its entitlement to summary judgment. The judgment was reversed, the order granting the plaintiff's motion for summary judgment was vacated, and the plaintiff's motion for summary judgment was denied.

Reported in New York Official Reports at Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 50869(U))

Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 50869(U)) [*1]

Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co.

2008 NY Slip Op 50869(U) [19 Misc 3d 138(A)]

Decided on April 14, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 14, 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
2007-222 RI C.

Orthotic Surgical & Medical Supply, Inc. a/a/o Bernard Bennett, Respondent,
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Johnny Lee Baynes, J.), entered December 21, 2006, deemed from a judgment of the same court entered January 2, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the December 21, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,375.18 plus statutory interest and attorney’s fees.

Judgment reversed without costs, order entered December 21, 2006 granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

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

On appeal, defendant contends, inter alia, that the affidavit by an employee of plaintiff’s former attorney, submitted in support of plaintiff’s motion for summary judgment, 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 the employee was insufficient to establish that said employee 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 [*2]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, plaintiff’s motion for summary judgment is denied.

To the extent defendant asks this court to search the record and grant it summary judgment, we decline to do so (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 14, 2008