Bronxborough Med., P.C. v Travelers Ins. Co. (2007 NY Slip Op 51485(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Edgar G. Walker, J.), entered December 9, 2004. The order denied plaintiff’s motion for summary judgment and awarded defendant $50 costs.

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 a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that plaintiff’s moving papers did not proffer facts in admissible form so as to establish plaintiff’s prima facie entitlement to judgment as a matter of law. The court denied plaintiff’s motion on the ground that the affidavit of plaintiff’s corporate officer was legally insufficient to establish plaintiff’s prima facie case and awarded defendant $50 costs. The instant appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s corporate officer was insufficient to establish [*2]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 (see 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.

To the extent the court awarded defendant costs in the sum of $50, CCA 1906 (a) vests the court with the discretion to impose costs not in excess of $50 upon the granting or denying of a motion. Under the circumstances presented, the imposition of costs was a not an improvident exercise of the court’s discretion (see PDG Psychological P.C. v Eveready Ins. Co., 13 Misc 3d 143[A], 2006 NY Slip Op 52305[U] [App Term, 2d & 11th Jud Dists]).

We note that during oral argument, this court was advised that plaintiff moved for reargument of the subject motion, and the court below, in a subsequent decision/order dated November 16, 2006, granted reargument, and upon reargument, substantially adhered to its original determination. Thus, pursuant to CPLR 5517 (a), this appeal is unaffected by the subsequent order. Moreover, we have not reviewed the subsequent decision/order pursuant to CPLR 5517 (b) because the record on appeal did not include the motion papers upon which the decision/order was based (see Matter of Donato v Board of Educ. of Plainview-Old Bethpage Cent. School Dist., 286 AD2d 388 [2001]; Matter of Merendino v Herman, 15 AD2d 818 [1962]; NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2004]).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: July 12, 2007