February 27, 2007

Fair Price Med. Supply Corp. v Clarendon Natl. Ins. Co. (2007 NY Slip Op 50375(U))

Headnote

The court considered that in an action by a provider to recover assigned first-party no-fault benefits, the plaintiff's motion for summary judgment was supported by an affirmation from the plaintiff's counsel, an affidavit by a corporate officer of the plaintiff, and various documents annexed thereto. However, the affidavit executed by the plaintiff's corporate officer stated in a conclusory manner that the documents attached to the plaintiff's motion papers were plaintiff's business records. The defendant argued that the affidavit by the plaintiff's corporate officer failed to lay a proper foundation for the documents annexed to the plaintiff's moving papers, thus, the plaintiff failed to establish a prima facie case. The main issue decided was whether the affidavit submitted by the plaintiff's corporate officer was sufficient to establish that the officer possessed personal knowledge of the plaintiff's practices and procedures, and whether it laid a foundation for the admission, as business records, of the documents annexed to the plaintiff's moving papers. The holding of the case was that since the affidavit submitted by the plaintiff's corporate officer was insufficient to establish that said officer possessed personal knowledge of the 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, the plaintiff failed to make a prima facie showing of its entitlement to summary judgment. Therefore, the plaintiff's motion for summary judgment was properly denied.

Reported in New York Official Reports at Fair Price Med. Supply Corp. v Clarendon Natl. Ins. Co. (2007 NY Slip Op 50375(U))

Fair Price Med. Supply Corp. v Clarendon Natl. Ins. Co. (2007 NY Slip Op 50375(U)) [*1]

Fair Price Med. Supply Corp. v Clarendon Natl. Ins. Co.

2007 NY Slip Op 50375(U) [14 Misc 3d 143(A)]

Decided on February 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., RIOS and BELEN, JJ
2006-195 K C.

Fair Price Medical Supply Corp. a/a/o Mikhail Pantelynko, Appellant,
against
Clarendon National Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered November 23, 2005. 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, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s corporate 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 corporate 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. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as 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, 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., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud
Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Weston Patterson, J.P., Rios and Belen, JJ., concur. [*2]
Decision Date: February 27, 2007