VISTA SURGICAL SUPPLIES INC v. UTICA MUTUAL INSURANCE CO (2005)

Upon the foregoing cited papers, plaintiff moves for summary judgment pursuant to CPLR § 3212.   For the following reasons, the plaintiff's motion is denied.

In this action, plaintiff Vista Surgical Supplies, Inc. seeks to recover first-party No-Fault benefits in the amount of $1,282.00, plus statutory, interest, costs, and attorneys' fees, for medical supplies it allegedly furnished to plaintiff's assignor, Julian Rosario, on February 5, 2003.   Plaintiff argues that defendant failed to timely deny its No-Fault claims.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact.   See Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986].   The motion must be supported by an affidavit from a person with knowledge of the facts, setting forth all material facts.   See CPLR § 3212(b).  If, in opposing the motion, the other party comes forward with evidence of issues of fact requiring a trial, the motion will be denied.   See Rebecchi v. Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423 [2d Dept.1991].

 In a no-fault context, a healthcare provider establishes prima facie entitlement to summary judgment as a matter of law by submitting proof in admissible form demonstrating that it is an assignee under a properly executed assignment, that the prescribed statutory claim form, setting forth the fact and amount of the loss sustained, was mailed to and received by the defendant, and that payment of no-fault benefits is overdue.   See 11 NYCRR 65-3.11(b)(2);  Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742, 774 N.Y.S.2d 564 [2d Dept.2004];  Triboro Chiropractic and Acupuncture P.L.L.C. ex rel. Tacopino v. Electric Ins. Co., 2 Misc.3d 135(A), 784 N.Y.S.2d 924, 2004 WL 758230 [App. Term, 2d & 11th Jud. Dists. 2004].   If the plaintiff makes out its prima facie case, the burden then shifts to the defendant.

 In support of the motion, plaintiff submits the affirmation of its attorney and affidavit from an officer of plaintiff.   It is axiomatic that a party's attorney “who lacks personal knowledge of the essential facts, is of no probative value and is insufficient to support an award of summary judgment․” Peters v. City of New York, 5 Misc.3d 1020(A), 799 N.Y.S.2d 163, 2004 WL 2732242 [Sup. Ct., Kings Cty. 2004];  see also Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];  Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc.3d 133(A), 787 N.Y.S.2d 675, 2004 WL 1197345 [App. Term, 2nd and 11th Jud. Dists. 2004];  Lupinsky v. Windham Constr. Corp., 293 A.D.2d 317, 739 N.Y.S.2d 717 [1st Dept.2002].

 The affidavit of Igor Kats, an officer of Vista Surgical Supplies, is also insufficient.   Mr. Kats' affidavit contains no recitations of fact particular to this case, such as the dates of service, the supplies allegedly provided, dates of mailing, or amount outstanding.   Rather, Mr. Kats' affidavit contains boilerplate language ¹ about the authenticity of non-specified bills and assignment from a non-specified assignor which was witnessed either by him or someone on his staff in his office on an unspecified date.   Instead of setting forth the facts in admissible form, Mr. Kats merely adopts the statements of plaintiff's counsel as contained in the attorney's affirmation.   By adopting the contents of an affirmation which has no probative value, the plaintiff's affidavit itself barren of material facts is also of no probative value.

Moreover, in his affidavit, Mr. Kats declares that “The above is the same testimony that I would present to this court at trial.”   If it came to that, plaintiff would lose at trial for failure to set forth a prima facie case.   At trial, Mr. Kats would not be able to say “I adopt whatever my attorney said.”

Because plaintiff's affidavit does not satisfy CPLR § 3212(b), plaintiff is not entitled to summary judgment.   Accordingly, plaintiff's motion is denied.

This is the Decision and Order of the Court.

FOOTNOTES

1.   Indeed, Mr. Kats' affidavit is identical to the one he submitted in at least two completely different cases (under Index numbers 064662/04 and 056074/04), decided simultaneously herewith.

ARLENE P. BLUTH, J.