Vista Surgical Supplies, Inc. v Progressive Cas.

[*1] Vista Surgical Supplies, Inc. v Progressive Cas. 2007 NY Slip Op 50695(U) [15 Misc 3d 133(A)] Decided on April 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 3, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-549 K C.

Vista Surgical Supplies, Inc. a/a/o REGINA M. MARCELLI, Appellant,

against

Progressive Casualty, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered May 5, 2005. 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. The court below denied plaintiff's motion, holding,
inter alia, that plaintiff did not make a prima facie showing because the affidavit of plaintiff's corporate officer was of no probative value since, among other things, it did not set forth facts in admissible form. The instant appeal by plaintiff 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 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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). [*2]Accordingly, plaintiff's motion for summary judgment was properly denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: April 03, 2007