Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co.

[*1] Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. 2007 NY Slip Op 51608(U) [16 Misc 3d 135(A)] Decided on August 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-557 K C.

Vista Surgical Supplies, Inc. a/a/o Angel Soto, Appellant,

against

Nationwide Mutual Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered November 10, 2005. 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 whether plaintiff's assignor attended duly requested examinations under oath and an independent medical examination. 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 admission of
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]). [*2]Consequently, the order denying plaintiff's motion for summary judgment is affirmed, albeit on other grounds.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007