January 3, 2007

Mega Supply & Billing, Inc. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50023(U))

Headnote

The relevant facts of this case were that Mega Supply & Billing, Inc. was seeking to recover assigned first-party no-fault benefits, and their motion for summary judgment was denied by the Civil Court of the City of New York, Kings County. Mega Supply's motion was supported by an affirmation from their counsel, an affidavit by a corporate officer, and various documents. However, the affidavit executed by the corporate officer was found to be insufficient in establishing that they possessed personal knowledge of the company's practices and procedures, so as to lay a foundation for the admission of the documents as business records. The main issue decided was whether Mega Supply had established a prima facie case for summary judgment, which the court found they had not. The holding of the case was that Mega Supply's motion for summary judgment was properly denied, as they failed to make a prima facie showing of their entitlement to summary judgment.

Reported in New York Official Reports at Mega Supply & Billing, Inc. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50023(U))

Mega Supply & Billing, Inc. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50023(U)) [*1]

Mega Supply & Billing, Inc. v Progressive Cas. Ins. Co.

2007 NY Slip Op 50023(U) [14 Misc 3d 130(A)]

Decided on January 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 3, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-193 K C.

Mega Supply & Billing, Inc., a/a/o William Borrero, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Milagros A. Matos, J.), entered November 17, 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]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.