563 Grand Med., P.C. v Kemper Auto & Home Ins. Co.

[*1] 563 Grand Med., P.C. v Kemper Auto & Home Ins. Co. 2010 NY Slip Op 50582(U) [27 Misc 3d 127(A)] Decided on March 31, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2008-1525 K C.

563 Grand Medical, P.C. a/a/o OMAR RODRIGUEZ and DANIEL C. RODRIGUEZ, Appellant,

against

Kemper Auto and Home Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered February 15, 2008. The order (1) denied plaintiff's motion for summary judgment and (2) granted defendant's cross motion seeking summary judgment dismissing the complaint or, in the alternative, to compel examinations before trial, to the extent of permitting defendant to serve discovery requests upon plaintiff, while preserving plaintiff's right to object to such requests.

ORDERED that the appeal from so much of the order as granted defendant's cross motion to the extent of permitting defendant to serve discovery requests upon plaintiff, while preserving plaintiff's right to object to such requests, is dismissed as plaintiff is not aggrieved thereby; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, to compel examinations before trial (EBTs). The Civil Court denied plaintiff's motion and granted defendant's cross motion "to the extent of permitting defendant to serve discovery requests upon plaintiff. Plaintiff's right to object to said requests is preserved." The instant appeal by plaintiff ensued.

A review of the record indicates that plaintiff failed to establish its prima facie entitlement to summary judgment. The affidavit in support of plaintiff's motion, submitted by the "employee of the company providing billing services for the plaintiff," was insufficient to establish said employee's personal knowledge of plaintiff's practices and procedures so as to lay a [*2]foundation for the admission, as business records, of the documents annexed to plaintiff's moving papers (see Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Dan Med., P.C. v New York 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.

While plaintiff contends that defendant did not establish its entitlement to compel the EBTs of specified persons, we do not pass upon said issue as the Civil Court did not grant such relief. Rather, the court merely "permitt[ed] defendant to serve discovery requests upon plaintiff" and noted that plaintiff's "right to object to said requests is preserved." Therefore, plaintiff is not aggrieved by the part of the order which gave defendant permission to serve discovery requests and preserved plaintiff's right to object to the requests (see CPLR 5511; see also CPLR 3122 [a]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 31, 2010