Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co.

[*1] Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. 2007 NY Slip Op 50605(U) [15 Misc 3d 129(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: : PESCE, P.J., GOLIA and RIOS, JJ
2006-293 K C.

Vista Surgical Supplies, Inc. a/a/o Anolina Medina, Respondent,

against

Nationwide Mutual Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered December 8, 2005, deemed an appeal from a judgment entered on January 5, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 8, 2005 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $2,354.

Judgment reversed without costs, order entered December 8, 2005 vacated, and plaintiff's motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted the motion and the instant appeal by defendant 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 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. [*2]Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the judgment is reversed, the order entered December 8, 2005 is vacated, and plaintiff's motion for summary judgment denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: March 26, 2007