Axis Chiropractic, PLLC v GEICO Gen. Ins. Co.

[*1] Axis Chiropractic, PLLC v GEICO Gen. Ins. Co. 2010 NY Slip Op 51339(U) [28 Misc 3d 133(A)] Decided on July 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 22, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-1174 K C.

Axis Chiropractic, PLLC as assignee of Ricargo Herrera, Appellant,

against

GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered March 13, 2009. The order denied plaintiff's motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff's motion for summary judgment, finding that "plaintiff's affidavit was legally insufficient." This appeal by plaintiff ensued.

Plaintiff's motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff's business practices and procedures to establish that the documents submitted in support of plaintiff's motion were admissible pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50065[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the order is affirmed.

In light of the foregoing, we reach no other issue.

Weston, J.P., Golia and Steinhardt, JJ., concur. [*2]
Decision Date: July 22, 2010