V.S. Med. Servs., P.C. v New York Cent. Mut. Ins.

[*1] V.S. Med. Servs., P.C. v New York Cent. Mut. Ins. 2007 NY Slip Op 51080(U) [15 Misc 3d 142(A)] Decided on May 25, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-654 Q C.

V.S. Medical Services, P.C. as assignee of Luisa Grazar, Appellant,

against

New York Central Mutual Insurance, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered January 19, 2006. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the court denied plaintiff's motion for summary judgment finding that there was an issue of fact as to whether plaintiff's bill used an improper code. The instant appeal by plaintiff ensued.

On appeal, defendant asserts 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. We agree. 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, albeit on other grounds.
Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: May 25, 2007