Fair Price Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50357(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 (Eileen Nadelson, J.), entered December 6, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order modified by denying defendant’s cross motion for summary judgment; as so modified, affirmed without costs.

In this action 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. Defendant cross-moved for summary judgment based upon the failure of plaintiff’s assignor to appear for two independent medical examinations (IMEs). Defendant also argued that the affidavit of plaintiff’s corporate officer was insufficient to establish plaintiff’s prima facie case because, among other things, it did not set forth evidence in admissible form. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment and plaintiff appeals therefrom.

Inasmuch as 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, 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., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for [*2]summary judgment was properly denied.

With regard to defendant’s cross motion for summary judgment, which was premised upon the alleged failure of plaintiff’s assignor to appear for two IMEs, plaintiff contends that defendant was not entitled to summary judgment because defendant’s cross motion did not present sufficient evidence in admissible form. Since defendant did not present an affidavit from someone with personal knowledge establishing that plaintiff’s assignor failed to appear for the IMEs, defendant did not make a prima facie showing of its entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., ___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]). Accordingly, defendant’s cross motion for summary judgment should have been denied.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: February 16, 2007