Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co.

[*1] Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. 2007 NY Slip Op 51487(U) [16 Misc 3d 132(A)] Decided on July 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-900 K C.

Delta Diagnostic Radiology, P.C. a/a/o Aleksandr Baskin, Appellant,

against

Progressive Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 8, 2005. The order, insofar as appealed from, denied plaintiff's motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider 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, inter alia, that the affidavit of plaintiff's corporate officer was of no probative value because it did not proffer facts in admissible form. Plaintiff appeals from so much of the order as denied its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff's corporate officer was insufficient to establish that said corporate officer possessed personal knowledge of plaintiff's business 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 (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, the order, insofar as it denied plaintiff's motion for summary judgment, should be affirmed.

In view of the foregoing, we reach no other issue.

Weston Patterson, J.P., Golia and Belen, JJ., concur. [*2]
Decision Date: July 12, 2007