Fortune Med., P.C. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 50497(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 (Peter Paul Sweeney, J.), entered October 13, 2005. The order granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days, and denied plaintiff’s cross motion for summary judgment.

Appeal from so much of the order as granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint based upon plaintiff’s failure to provide discovery and plaintiff cross-moved for summary judgment. Plaintiff’s cross motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. However, plaintiff did not address defendant’s motion to dismiss. The court below denied plaintiff’s cross motion, holding, inter alia, that plaintiff did not make a prima facie showing because the affidavit of plaintiff’s corporate officer was of no probative value since, among other things, it did not set forth facts in admissible form. The court also granted defendant’s motion to the extent of dismissing the complaint unless plaintiff provided a bill of particulars and responded to outstanding discovery demands within 45 days after service of the order with notice of entry. The instant appeal by plaintiff ensued.

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 [*2]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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; 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 cross motion for summary judgment was properly denied.

Since plaintiff failed to submit written opposition to defendant’s motion to strike the complaint, that branch of the order which granted defendant’s motion to the extent of requiring plaintiff to serve a bill of particulars and respond to defendant’s disclosure demands was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s motion is dismissed.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 12, 2007