Careplus Med. Supply, Inc. v Utica Mut. Ins. Co.

[*1] Careplus Med. Supply, Inc. v Utica Mut. Ins. Co. 2009 NY Slip Op 51132(U) [23 Misc 3d 145(A)] Decided on June 2, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and MOLIA, JJ
2008-1445 N C.

Careplus Medical Supply, Inc. a/a/o PAUL ANDERSON and ALICIA PRINCE, Appellant,

against

Utica Mutual Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Bonnie P. Chaikin, J.), entered June 18, 2008. 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 moved for summary judgment. Defendant opposed the motion, arguing, inter
alia, that the affidavit by plaintiff's president and medical biller failed to make a prima facie showing of plaintiff's entitlement to judgment as a matter of law. The District Court denied plaintiff's motion, holding, inter alia, that plaintiff failed to establish its prima facie case. This appeal by plaintiff ensued.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff's president and medical biller failed to establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff's motion for summary judgment was properly denied. We reach no other issue.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: June 02, 2009