Colonia Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50352(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, Kings County (Jack M. Battaglia, J.), entered May 22, 2006, deemed from a judgment entered June 29, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 22, 2006 order granting plaintiff’s motion for summary judgment to the extent of awarding plaintiff partial summary judgment and denying, in effect as academic, defendant’s cross motion to compel depositions, awarded plaintiff the principal sum of $3,000.75.

Judgment reversed without costs, order entered May 22, 2006 vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for determination of defendant’s cross motion to compel depositions.

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 from 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 annexed to the motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that plaintiff’s affidavit failed to lay a proper foundation for the documents annexed to the motion papers and that, as a result, plaintiff failed to establish a prima facie case. In addition, defendant cross-moved for an order, pursuant to CPLR 3124 and 3126, to compel depositions. The court below granted partial summary judgment to plaintiff and denied defendant’s cross motion as academic. This appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to its [*2]motion papers. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish 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. Accordingly, 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]).

Inasmuch as the lower court denied, in effect as academic, defendant’s cross motion to compel depositions as a result of its conclusion that plaintiff was entitled to partial summary judgment, the matter is remanded to the court below for a determination of defendant’s cross motion.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 2008