Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co.

[*1] Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. 2007 NY Slip Op 50939(U) [15 Misc 3d 138(A)] Decided on May 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 7, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-341 K C.

Vista Surgical Supplies, Inc. a/a/o Taiye Nelson, Appellant,

against

New York Central Mutual Fire Insurance Co., 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 to recover first-party no-fault benefits, plaintiff moved for summary judgment. The court below denied the motion on the ground that plaintiff's moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its motion for summary judgment.

On appeal, defendant asserts that the affidavit of 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. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff's motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: May 7, 2007