Vista Surgical Supplies, Inc. v General Assur. Co.

[*1] Vista Surgical Supplies, Inc. v General Assur. Co. 2007 NY Slip Op 50613(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 This opinion is uncorrected and will not be published in the printed Official Reports.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
2006-640 K C.

VISTA SURGICAL SUPPLIES, INC. a/a/o Tito Valdez, Appellant,

against

GENERAL ASSURANCE COMPANY, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered January 24, 2006. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

In this action by a provider of medical supplies to recover assigned first-party no-fault benefits, plaintiff's motion for summary judgment was supported by an affirmation from plaintiff's counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff's corporate officer stated in a conclusory manner that the documents attached to plaintiff's motion papers were plaintiff's business records. In opposition, defendant argued that the affidavit by
plaintiff's corporate officer was insufficient to establish personal knowledge of the facts set forth therein because the corporate officer did not demonstrate that he possessed sufficient personal knowledge of plaintiff's office practices and procedures to lay a proper foundation to establish that the documents submitted by plaintiff were admissible pursuant to the business records exception to the hearsay rule (see CPLR 4518). The court denied plaintiff's motion for summary judgment and this appeal ensued.

Inasmuch as 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 [*2]as to lay a foundation for 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 Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff's motion for summary judgment was properly denied.

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