Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co. (2010 NY Slip Op 50065(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 23, 2007. The order, insofar as appealed from as limited by the brief, granted plaintiff’s cross motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered August 30, 2007 which awarded plaintiff the principal sum of $791.92 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order entered April 23, 2007 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court entered April 23, 2007 as granted plaintiff’s cross motion for summary judgment. The appeal is deemed to be from the judgment that was subsequently entered pursuant to said portion of the order (see CPLR 5501 [c]).

Plaintiff’s cross motion for summary judgment was supported by an affidavit of an employee of a third-party billing company who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the annexed documents were admissible pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Psychology YM, P.C. v Nationwide Mut. Ins. Co., 24 Misc 3d 140[A], 2009 NY Slip Op 51634[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the judgment is reversed, so much of the April 23, 2007 order as granted plaintiff’s cross motion for summary judgment is vacated [*2]and plaintiff’s cross motion for summary judgment is denied.

In light of the foregoing, we reach no other issue.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 2010