North Acupuncture, P.C. v State Farm Ins. Co. (2006 NY Slip Op 52523(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 (Alice Fisher Rubin, J.), entered August 8, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion which, pursuant to CPLR 3126, sought an order dismissing the action due to plaintiff’s failure to provide discovery or, in the alternative, compelling plaintiff to provide discovery.

Order modified by providing that plaintiff’s motion for summary judgment is denied and defendant’s cross motion is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Plaintiff commenced the instant action to recover assigned first-party no-fault benefits. Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel and various documents annexed thereto. However, plaintiff’s counsel did not assert a basis of his personal knowledge of the facts and did not lay a sufficient foundation to establish that what counsel represented to be plaintiff’s claim form was admissible under the business records exception to the hearsay rule (see CPLR 4518; People v Kennedy, 68 NY2d 569 [1986]; Trotti v Estate of Buchanan, 272 AD2d 660 [2000]; Dayanim v Unis, 171 AD2d 579 [1991]). To the extent defendant issued a denial of claim form, said claim denial merely established that defendant received a claim form submitted by, or on behalf of, plaintiff, but it did not concede the admissibility of the purported claim form or the facts set forth therein (Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists]). In light of plaintiff’s counsel’s apparent lack of [*2]personal knowledge, plaintiff failed to establish its prima facie entitlement to summary judgment through the submission of competent evidence (CPLR 3212 [b]; see CPLR 4518; Read v Ellenville Natl. Bank, 20 AD3d 408 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U], supra).

Although plaintiff subsequently served an affidavit executed by its president, the affidavit, which was denominated a “Supplemental Affidavit,” was in reality a reply affidavit. Plaintiff could not establish its entitlement to judgment as a matter of law by submitting as part of its reply papers sufficient evidence in admissible form to cure defects in plaintiff’s moving papers (see Canter v East Nassau Med. Group, 270 AD2d 381 [2000]; Fischer v Edward M. Weiland M.D., P. C., 241 AD2d 439 [1997]; Calderone v Harrel, 237 AD2d 318 [1997]; Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624 [1995]; Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Although defendant’s cross motion to, inter alia, compel discovery was unopposed, the discovery demands annexed to defendant’s cross motion pertained to a different action involving a different plaintiff and a different assignor. As a result, it is unclear what discovery demands defendant served in this action. Accordingly, defendant’s cross motion to, inter alia, compel discovery should be denied with leave to renew upon proper papers.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 18, 2006