Papers Numbered Defendant’s Motion for Summary Judgment, Exhibits Attached 1 Plaintiffs Opposition to Defendant’s Motion for Summary Judgment 2 Defendant’s Reply to Plaintiff’s Opposition 3 DECISION AND ORDER Upon the foregoing cited papers, and oral argument, the Decision/Order on the motions are as follows: PROCEDURAL HISTORY This action was commenced on or about July 25, 2022 by Baltic Supply Corp. as assignee of Jennifer Boston (hereinafter “Plaintiff”) with the filing of a summons and complaint against State Farm Fire and Casualty Co., (hereinafter “Defendant”) for No-Fault benefits allegedly due to the Plaintiff for services rendered on July 29, 2021 and September 24, 2021 as a result of a motor vehicle accident on May 25, 2021. Defendant now moves for Summary Judgment, arguing that the Assignor’s policy was exhausted and no further payments are due. Plaintiff opposes said motion by arguing that Defendant failed to lay the proper foundation for its documentary evidence in Defendant’s Motion for Summary Judgment. DISCUSSION I: Summary Judgment A motion for Summary Judgment under CPLR §3212 should be granted if “upon all the papers and proofs submitted, the cause of action shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any of the parties.” CPLR §3212 (b), Matter of Eighth Dist. Asbestos Litig., 33 N.Y.3d 488, 496 (2019) quoting Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); O’Brien v. Port Auth. Of N.Y. & N.J., 29 N.Y.3d 27, 37 (2017). Summary Judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues. Chiara v. Town of New Castle, 126 A.D.3d 111, 125 (2nd Dep’t 2015), citing Millerton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 NY2d 57 (1966). In reviewing a Summary Judgment motion, the court must consider the facts in the light most favorable to the opposing party. Lau v. Margaret E. Pescatore Parking, Inc., 30 NY3d 1025, 1027 (2017) citing Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 NY3d 96 (2005). A party in opposition to a motion for Summary Judgment must present evidence sufficient to raise a triable issue of fact, although mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient. Lau v. Margaret E. Pescatore Parking, Inc., 30 NY3d 1025, 1027 (2017) citing Zuckerman v. New York, 49 NY2d 557, 562 (1980). The moving party must demonstrate that it is in fact entitled to Summary Judgment by submitting proof in admissible form, including affidavits by persons with knowledge of the facts that recite the material facts. Vaughn v. Westfield, LLC, 216 A.D.3d 849 (2d. Dep’t 2023); Deutsche Bank Natl. Trust Co. v. Unlimited Assets, 211 A.D.3d 683, 684 (2d. Dep’t 2022); Bank of N.Y. Mellon v. Mannino, 209 A.D.3d 707, 708 (2d. Dep’t 2022); Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 201 (2d. Dep’t 2019) Once the movant has made this showing, however, the burden shifts to the party opposing the motion for Summary Judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Matter of Eighth Dist. Asbestos Litig., 33 N.Y.3d 488, 496 (2019) quoting Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 (2014) quoting Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012). II: Defendant Fails to Lay the Proper Evidentiary Foundation for Keri Alonzo’s Affidavit. Defendant moves for Summary Judgment based on policy exhaustion. Defendant states that this case was brought pursuant to a Virginia automobile insurance policy held by the Assignor. Defendant claims that Plaintiff is entitled to the minimum New York No-Fault benefits because the Virginia policy does not have No-Fault benefits. Defendant contends that it provided $50,000.00 in No-Fault benefits, the minimum required by law, and thus, the policy was exhausted and no further payments are due. Defendant argues that there are no triable issues of fact. In support of its position, Defendant provides several affidavits. Plaintiff opposes Defendant’s Motion for Summary Judgment on the sole ground that the affidavits submitted by Defendant in support of its motion fail to lay the proper foundation as a business record pursuant to CPLR §4518 and therefore, are inadmissible. Specifically, Plaintiff draws the Court’s attention to the affidavit of Keri Alonzo and argues that her affidavit fails to meet the criteria for admission as a business record. As noted earlier, a Motion for Summary Judgment must contain admissible evidence in support of the moving party’s position. In this case, Defendant moves for Summary Judgment and puts forth several affidavits from individuals purporting to have personal knowledge of the facts. Defendant seeks to admit these affidavits as business records. CPLR §4518(a) governs admission of writing or records as business records. To be admissible as a business record, the document or record must be made in the regular course of business, it must be the regular course of business to make such record at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, and the person making such record must be under a business duty to do so accurately. CPLR §4518(a): Viviane Etienne Med. Care v. Country-Wide Ins. Co., 25 N.Y.3d 498, 508 (2015); Aurora Loan Servs., LLC v. Mercius, 138 A.D.3d 650, 652 (2d. Dep’t 2016). Here, the affidavit at issue is that of Keri Alonzo, Claim Specialist for State Farm Mutual Automobile Insurance Company. The Court is satisfied that Keri Alonzo has personal knowledge of the facts of this case based on her duties and responsibilities with State Farm. Next, the affidavit explicitly states that the documents attached are created, maintained and or received by State Farm in the regular course of its business, were done by State Farm and its employees, and State Farm has an obligation to generate and maintain the documents in the regular course of its business. While these sentiments satisfy most of the requirements for admission as a business record, the affidavit falls short in explicitly stating that the records are created by a person under a business to do so accurately and that the records were created contemporaneously. The affidavit states that the records are created by State Farm employees but, makes no mention of the business duty the individual employees are under. Furthermore, although, the affidavit states that the dates on the documents are the dates they were created, the Court is left to infer that these are created contemporaneously with the event. Viewing the evidence in the light most favorable to the moving party, the Court hereby finds that such an inference exceeds the Court’s authority in a Motion for Summary Judgment. Therefore, an issue of fact for trial exists, namely, whether the policy was in fact exhausted. Conclusion Based on the foregoing, Defendant’s motion for Summary Judgment is denied. This matter shall proceed to trial. This matter is scheduled on the Part 58 calendar for September 27, 2023. This constitutes the final decision and order of the Court. Dated: July 5, 2023
