Union Physician Healthcare, P.C. v Utica Mut. Ins. Co.
Decided on January 9, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-1666 K C.
Union Physician Healthcare, P.C. as assignee of CHRISTOPHER KELLY, Respondent,
Utica Mutual Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E.
Freed, J.), entered June 22, 2006, deemed from a judgment of the same court entered August 10,
2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 22, 2006 order granting
plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $1,757.32.
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 Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 55 AD3d 644 ; 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]). [*2]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.
Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: January 09, 2009