Amaze Med. Supply, Inc. v Travelers Indem. Co.

[*1] Amaze Med. Supply, Inc. v Travelers Indem. Co. 2009 NY Slip Op 51339(U) [24 Misc 3d 129(A)] Decided on June 25, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., MOLIA and NICOLAI, JJ
2008-1955 N C.

Amaze Medical Supply, Inc. a/a/o WALTER LOPEZ, Appellant,

against

The Travelers Indemnity Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), entered July 7, 2008. The order denied plaintiff's motion for summary judgment.

Order affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that plaintiff did not make a prima facie showing of its entitlement to judgment as a matter of law. The District Court denied plaintiff's motion, holding that the affidavit by plaintiff's biller failed to establish a prima facie case because it did not demonstrate that the documents annexed to plaintiff's motion were admissible as business records. 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 biller failed to establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518 (see 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]). Plaintiff's remaining contentions are wholly without merit. Consequently, plaintiff's motion for summary judgment was properly denied.

Rudolph, P.J., and Nicolai, J., concur.

Molia, J., taking no part.
Decision Date: June 25, 2009