Capri Med., P.C. v New York Cent. Mut. Ins. Co.

[*1] Capri Med., P.C. v New York Cent. Mut. Ins. Co. 2007 NY Slip Op 50536(U) [15 Misc 3d 127(A)] Decided on March 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., RIOS and BELEN, JJ
2006-29 Q C.

Capri Medical, P.C. A/A/O SVETLANA MIRZOYAN, Appellant,

against

New York Central Mutual Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County

(Johnny Lee Baynes, J.), entered July 7, 2005. The order denied plaintiff's motion for
summary judgment.

Order affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. The court below denied plaintiff's motion for
summary judgment, holding that there was an issue of fact as to whether the injuries
alleged by plaintiff's assignor were caused by a covered accident. The instant appeal
by plaintiff ensued.

On appeal, defendant raises for the first time that the affidavit by plaintiff's corporate officer, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff's moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by plaintiff's corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff's practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff's moving papers. Accordingly, plaintiff failed to make a prima facie showing that it submitted its claim forms to defendant thereby entitling it to summary judgment (see Bath Med. Supply, Inc. v [*2]Deerbrook Ins. Co., ___ Misc 3d ___, 2007 NY Slip Op_____ [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY
Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff's motion for summary judgment was properly denied. In light of the foregoing, we reach no other issue.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 19, 2007