First Aid Occupational Therapy, PLLC v State Farm Fire & Cas. Co. (2008 NY Slip Op 51099(U))

Reported in New York Official Reports at First Aid Occupational Therapy, PLLC v State Farm Fire & Cas. Co. (2008 NY Slip Op 51099(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 13, 2006. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment denied.
In this action by a provider to recover assigned first-party no-fault benefits, the court, inter alia, granted plaintiff’s motion for summary judgment, finding that plaintiff made out its prima facie case and that defendant failed to raise a triable issue of fact. The instant appeal by defendant ensued.
On appeal, defendant asserts that the affidavit by plaintiff’s employee, submitted in support of plaintiff’s motion, failed to lay a proper foundation for the documents
annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s employee failed to set forth a basis to support her conclusory assertion that she possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents [*2]annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the order, insofar as it granted plaintiff’s motion for summary judgment, is reversed and plaintiff’s motion for summary judgment is denied.
Pesce, P.J., Weston Patterson and Golia, JJ., concur.