Bedford Park Med. Practice, P.C. v Progressive Cas. Ins. Co.

[*1] Bedford Park Med. Practice, P.C. v Progressive Cas. Ins. Co. 2007 NY Slip Op 50494(U) [15 Misc 3d 126(A)] Decided on March 8, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2006-258 Q C. NO. 2006-258 Q C

Bedford Park Medical Practice, P.C. as assignee of William Perez, Appellant,

against

Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Valerie Braithwaite Nelson, J.), entered November 29, 2005. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment to the extent of precluding plaintiff from offering any evidence at trial.

Appeal from so much of the order as granted defendant's cross motion for summary judgment to the extent of precluding plaintiff from offering any evidence at trial dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment based upon, among other things, plaintiff's failure to comply with a so-ordered stipulation. Plaintiff's motion for summary judgment was supported by an affirmation from plaintiff's counsel and various documents annexed thereto. The court below denied plaintiff's motion on the ground that plaintiff did not make a prima facie showing due to the absence of an affidavit of merit executed by a person with personal knowledge of the facts. The court also granted defendant's cross motion to the extent of precluding plaintiff from offering any evidence at trial. The instant appeal by plaintiff ensued.

Inasmuch as the affirmation of plaintiff's counsel was of no probative value because it did not assert a basis of counsel's personal knowledge of the facts and lay a sufficient foundation for [*2]the admission, as business records, of the documents annexed to plaintiff's moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see CPLR 4518; Zuckerman v City of New York, 49 NY2d 557 [1980]; Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists]). Although plaintiff subsequently served an affidavit executed by its corporate officer, even if said affidavit was sufficient to demonstrate that the documents annexed to plaintiff's papers were admissible as business records, plaintiff was not entitled to summary judgment because plaintiff cannot establish its entitlement to judgment as a matter of law by submitting as part of its reply papers sufficient evidence in admissible form to cure defects in its moving papers (see North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d & 11th Jud Dists]).

Since plaintiff failed to submit written opposition to the branch of defendant's cross motion which was based upon plaintiff's failure to comply with the so-ordered stipulation which required plaintiff to provide discovery, the branch of the order which granted defendant's cross motion was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576
[2004]; Maino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant's cross motion is dismissed.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: March 8, 2007