IVB Med. Supply, Inc. v State Farm Mut. Ins. Co.

[*1] IVB Med. Supply, Inc. v State Farm Mut. Ins. Co. 2007 NY Slip Op 50890(U) [15 Misc 3d 137(A)] Decided on April 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 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
2005-1689 Q C. NO. 2006-1251 Q C

IVB Medical Supply, Inc. a/a/o CLAUDIA PEREZ, Appellant,

against

State Farm Mutual Insurance Co., Respondent. IVB Medical Supply, Inc. a/a/o Claudia Perez, Respondent, State Farm Mutual Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered June 27, 2005. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment.

Appeal from an order of the same court entered December 22, 2005. The order, insofar as appealed from, in effect, vacated the judgment entered November 2, 2005 pursuant to the order entered June 27, 2005, granted plaintiff's motion for reargument and, upon reargument, denied defendant's cross motion for summary judgment. [*2]

On the court's own motion, appeals consolidated for purposes of disposition.

Appeal from so much of the order entered June 27, 2005 as granted defendant's cross motion for summary judgment dismissed as superseded.

Order entered June 27, 2005, insofar as reviewed, affirmed without costs.

Order entered December 22, 2005, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff's motion and cross-moved for summary judgment on the ground that the subject insurance policy was canceled approximately one month prior to the accident. In an order entered June 27, 2005, the court denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the action on the ground of lack of coverage due to cancellation of the insurance policy. Plaintiff appealed from said order and moved for reargument. While the motion and plaintiff's appeal were pending, a judgment was entered on November 2, 2005 dismissing the action. In an order entered December 22, 2005, the court granted plaintiff's motion to the extent of, in effect, vacating the judgment, granting reargument and, upon reargument, denying defendant's cross motion for summary judgment, holding that defendant did not present evidence in admissible form establishing that the insurance policy was canceled. Defendant appeals from so much of the order entered December 22, 2005 by which it is aggrieved.

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. The court denied plaintiff's motion for summary judgment on the ground that the affidavit did not contain any facts relevant to the action and plaintiff failed to support its motion with admissible evidence.

Since 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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff's motion for summary judgment was properly denied, and thus the order entered June 27, 2005 is affirmed insofar as reviewed.

While the parties disagree as to which statute governed with respect to the cancellation of the subject insurance policy, it is beyond dispute that in support of its cross motion for summary judgment, defendant was required to establish, prima facie, that it mailed the notice cancelling the subject insurance policy (see Vehicle and Traffic Law § 313). Defendant failed to meet its burden upon its cross motion for summary judgment because it did not submit an affidavit from someone with personal knowledge which was sufficient to establish that the cancellation notice was mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Accordingly, the order entered December 22, 2005 is affirmed insofar as appealed from.

Pesce, P.J., Weston Patterson and Rios, JJ., concur. [*3]
Decision Date: April 27, 2007