JSI Expert Servs., Inc. v Travelers Ins. Co.

[*1] JSI Expert Servs., Inc. v Travelers Ins. Co. 2007 NY Slip Op 51974(U) [17 Misc 3d 129(A)] Decided on October 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 3, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-273 K C.

JSI Expert Services, Inc. a/a/o ROMEL AUDIGE, Appellant,

against

Travelers Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered May 27, 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, plaintiff's motion for summary judgment was supported by an affirmation from plaintiff's counsel, an affidavit by an employee of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff's employee stated in a conclusory manner that the documents attached to plaintiff's motion papers were "true and correct cop[ies]
of what was sent to Defendant." The court below denied the motion on the ground that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff's employee was legally insufficient. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff's employee 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 [*2]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 Belen, JJ., concur.
Decision Date: October 03, 2007