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

[*1] Dan Med., P.C. v New York Cent. Mut. Ins. Co. 2007 NY Slip Op 50602(U) [15 Misc 3d 128(A)] Decided on March 26, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 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
2006-44 Q C.

Dan Medical, P.C., a/a/o Rose Diogene, 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 (Diccia T. Pineda-Kirwan, J.), entered October 24, 2005. The order partially granted defendant's unopposed motion to compel disclosure and denied plaintiff's cross motion for summary judgment.

Appeal from so much of the order as partially granted defendant's motion to compel disclosure dismissed.

Order, insofar as reviewed, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for health care services rendered to its assignor. After defendant moved to compel disclosure, plaintiff cross-moved for summary judgment. Plaintiff did not address defendant's motion to compel disclosure. By order entered October 24, 2005, the court below denied plaintiff's cross motion and granted defendant's motion to compel disclosure to the extent of requiring plaintiff to appear by a treating physician for an examination before trial. 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 [*2]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 of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff's cross motion for summary judgment was properly denied.

Since plaintiff failed to submit written opposition to defendant's motion to compel disclosure, that branch of the order which granted defendant's motion to the extent of requiring plaintiff to appear by a treating physician for an examination before trial 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]; Marino 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 motion to compel disclosure is dismissed.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 26, 2007