Ontario Med., P.C. v Sea Side Med., P.C. (2007 NY Slip Op 50609(U))

Ontario Med., P.C. v Sea Side Med., P.C.

2007 NY Slip Op 50609(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This opinion is uncorrected and will not be published in the printed Official Reports.

ONTARIO MEDICAL, P.C. as assignee of Kevin Christian, Respondent, -and-

against

Sea Side Medical, P.C. as assignee of Nicolas Rodriguez and Gregory Shtender Physician, P.C. as assignee of Azyahnira Rivas, Plaintiffs, New York Central Mutual Fire Insurance Company, Appellant.

(C. Steven Hackeling, J.), entered November 17, 2005. The order, insofar as appealed from as limited by the brief, granted the motion by plaintiff Ontario Medical, P.C. for partial summary judgment.

Order, insofar as appealed from, reversed without costs and motion by plaintiff Ontario Medical, P.C. for partial summary judgment denied.

In this action by providers to recover assigned first-party no-fault benefits, plaintiff Ontario Medical, P.C. (Ontario) moved for summary judgment as to its single claim and defendant cross-moved, inter alia, for summary judgment dismissing
Ontario's complaint. Ontario's motion for partial summary judgment was supported by an affirmation from its counsel and various documents annexed thereto. In opposition, defendant [*2]argued, inter alia, that Ontario did not make a prima facie showing of its entitlement to partial summary judgment because Ontario failed to provide an affidavit from a person with personal knowledge as required by CPLR 3212. The court granted Ontario's motion for partial summary judgment and denied as moot defendant's cross motion. On appeal, defendant contends that the court should not have granted Ontario's motion.

Facts set forth in an attorney's affirmation are of no probative value absent the attorney's assertion of a basis for his or her personal knowledge of the facts (Zuckerman v City of New York, 49 NY2d 557 [1980]; Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists]). Ontario's counsel did not lay a sufficient foundation to establish that what counsel represented to be Ontario's claim forms were admissible under the business records exception to the hearsay rule (see CPLR 4518; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U], supra). To the extent defendant may have issued claim denial forms, said claim denials merely established that defendant received claim forms submitted by, or on behalf of Ontario, but they did not concede the admissibility of the purported claim forms or the facts set forth therein. In light of Ontario's counsel's apparent lack of personal knowledge, Ontario failed to establish its prima facie entitlement to judgment through the submission of competent evidence (CPLR 3212 [b]; see CPLR 4518; Zuckerman v City of New York, 49 NY2d 557, supra; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U], supra). As a result, Ontario's motion for partial summary judgment should have been denied.