Struhl v Countrywide Ins. Co.

[*1] Struhl v Countrywide Ins. Co. 2007 NY Slip Op 52071(U) [17 Misc 3d 133(A)] Decided on October 23, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 23, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-1402 Q C.

Steven Struhl, M.D. a/a/o Kelvin Rodriguez, Respondent,

against

Countrywide Insurance Company, Appellant.

Appeals from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), dated September 23, 2005, and from a judgment of the same court entered March 31, 2006. The order granted plaintiff's motion for summary judgment. The judgment, entered upon the order of September 23, 2005, awarded plaintiff the principal sum of $21,500.


Appeal from order dismissed.
Judgment reversed without costs, order granting plaintiff's motion for summary judgment vacated and plaintiff's motion for summary judgment denied.
The appeal from the order is dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in the action (see Matter of Aho, 39 [*2]NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff's motion for summary judgment was supported by an affirmation from plaintiff's counsel, an affirmation by plaintiff, and various documents annexed thereto. The affirmation executed by plaintiff stated in a conclusory manner that the documents attached to his motion papers were his business records. In opposition, defendant argued, inter alia, that the affirmation by plaintiff failed to lay a proper foundation for the documents annexed to his moving papers and that, as a result, plaintiff failed to establish a prima facie case. The court granted plaintiff's motion for summary judgment and this appeal by defendant ensued.
On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to his moving papers. We agree. Inasmuch as the affirmation submitted by plaintiff was insufficient to establish that he possessed personal knowledge of his office practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to his moving papers, plaintiff failed to make a prima facie showing of his entitlement to summary judgment since he stated that his affirmation was based upon his review of said records (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, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.
In light of the foregoing, we do not address the parties' remaining contentions. Pesce, P.J., Rios and Belen, JJ., concur.