Triboro Quality Med. Supply, Inc. v Travelers Prop. & Cas. Ins. Co.

[*1] Triboro Quality Med. Supply, Inc. v Travelers Prop. & Cas. Ins. Co. 2009 NY Slip Op 51082(U) [23 Misc 3d 143(A)] Decided on May 28, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 28, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-866 K C.

Triboro Quality Medical Supply, Inc. a/a/o DENNIS FRANCISCO and RAFAEL FRANCO, Appellant,

against

Travelers Property and Casualty Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered March 13, 2008. The order, insofar as appealed from as limited by the brief, denied plaintiff's motion for summary judgment.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff's motion for summary judgment, finding that the affidavit plaintiff submitted in support of the motion was insufficient to lay a foundation for the admission, as business records, of the documents annexed to its moving papers. The court granted defendant's cross motion for summary judgment dismissing the complaint, holding that defendant established the lack of medical necessity for the supplies provided, and noting that "[p]laintiff did not file any opposition to rebut defendant's evidence." As limited by its brief, plaintiff appeals from so much of the order as denied its motion for summary judgment, arguing that its motion papers demonstrated a prima facie entitlement to summary judgment.

Inasmuch as plaintiff does not offer any argument as to why this court should reverse the portion of the order which granted defendant's cross motion for summary judgment, we need not reach the only issue raised by plaintiff, i.e., whether plaintiff established its prima facie entitlement to summary judgment, since the ultimate outcome of the case would, in any event, [*2]not be altered.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 28, 2009