Delta Diagnostic Radiology, P.C. v Liberty Mut. Ins. Co.

[*1] Delta Diagnostic Radiology, P.C. v Liberty Mut. Ins. Co. 2006 NY Slip Op 52303(U) [13 Misc 3d 143(A)] Decided on December 1, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1785 K C.

Delta Diagnostic Radiology, P.C. a/a/o Jean Rody Medouze, Appellant,

against

Liberty Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered March 15, 2005. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

In this action by a health care 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 "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 annexed to plaintiff's motion papers were plaintiff's business records. In opposition to plaintiff's motion, defendant argued that, inter alia, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law because plaintiff's moving papers lacked a statement from someone with personal knowledge regarding the documents annexed to their moving papers. The Civil Court denied plaintiff's motion, holding that plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, and this appeal ensued.

Plaintiff's contention that it established its prima facie case lacks merit. For the reasons stated in Dan Medical, P.C. v New York Cent. Mut. Fire Ins. Co. (No. 2005-1801 K C, decided herewith), the supporting affidavit submitted by plaintiff's "corporate officer" failed to demonstrate that he was in a position to lay a foundation for the admission, as business records, [*2]of the documents annexed to plaintiff's moving papers. Accordingly, plaintiff's motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 1, 2006