Craigg Total Health Family Chiropractic Care, P.C. v QBE Ins. Corp.

[*1] Craigg Total Health Family Chiropractic Care, P.C. v QBE Ins. Corp. 2009 NY Slip Op 51400(U) [24 Misc 3d 134(A)] Decided on June 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and NICOLAI, JJ
2008-1960 N C.

Craigg Total Health Family Chiropractic Care, P.C., GENTLE CARE ACUPUNCTURE, P.C. and RLC MEDICAL, P.C. a/a/o ROBERT ARONOV , Appellants,

against

QBE Insurance Corporation, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), dated June 30, 2008, deemed from an amended order entered September 24, 2008 (see CPLR 5520 [c]). The amended order denied plaintiffs' motion for summary judgment.

Amended order affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that plaintiffs had failed to lay a foundation for the admission, as business records, of the documents annexed to their motion. The District Court denied plaintiffs' motion on the ground that the affidavit of plaintiffs' billing manager was insufficient to satisfy the business records exception to the hearsay rule. This appeal by plaintiffs ensued.

Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs' billing manager failed to establish that the documents annexed to plaintiffs' moving papers were admissible pursuant to CPLR 4518 (Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiffs' motion for summary judgment was properly denied.

In light of the foregoing, we reach no other issue.

Rudolph, P.J., Tanenbaum and Nicolai, JJ., concur. [*2]
Decision Date: June 29, 2009