All Mental Care Medicine, P.C. v Allstate Ins. Co.

[*1] All Mental Care Medicine, P.C. v Allstate Ins. Co. 2007 NY Slip Op 50612(U) [15 Misc 3d 129(A)] Decided on March 26, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-483 K C.

ALL MENTAL CARE MEDICINE, P.C. a/a/o Zinaida Aulova, Appellant,

against

ALLSTATE INSURANCE COMPANY, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered February 1, 2006. The order denied plaintiff's renewed motion for leave to enter a default judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for an order granting it leave to enter a default judgment upon defendant's failure to appear or answer the complaint. The motion was denied with leave to renew upon submission of a proper affidavit by plaintiff. Thereafter, plaintiff renewed its motion with what it deemed to be a sufficient affidavit. The motion court
again denied the motion, on the ground that plaintiff did not adequately establish submission of the claim forms. The instant appeal ensued.

CPLR 3215 (f) requires that upon any application for a default judgment, the applicant must, inter alia, file "proof of the facts constituting the claim, the default and the amount due by affidavit made by the party." The affidavit in support of the motion must be made upon personal knowledge of the facts (see Fiorino v Yung Poon Yung, 281 AD2d 513 [2001]; Finnegan v Sheahan, 269 AD2d 491 [2000]) and must establish a prima facie case (Matter of Dyno v Rose, 260 AD2d 694 [1999]). If the court determines that the affidavit fails to establish a prima facie case, the applicant is not entitled to the requested relief, even on default (id. at 698). [*2]

In the instant action, the affidavit of plaintiff's corporate officer, which plaintiff submitted on its renewed motion, 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 motion papers. Accordingly, plaintiff did not establish a prima facie case (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). In any event, even if the affidavit had laid a proper foundation for the admissibility of the annexed documents, the court below correctly found that plaintiff failed to establish that it submitted the claim forms to defendant (see Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50473[U] [App Term, 2d & 11th Jud Dists]; see also PDG Psychological P.C. v Progressive Cas. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51432[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, since plaintiff did not demonstrate a prima facie entitlement to judgment as a matter of law, the court below properly denied plaintiff's renewed motion for leave to enter a default judgment.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 26, 2007