S.P. Med. Ctr. v Trumbull Ins. Co. (2007 NY Slip Op 50692(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 (Jack M. Battaglia, J.), entered November 18, 2005, deemed an appeal from a judgment entered on January 3, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 18, 2005 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion to dismiss the complaint, awarded plaintiff the sum of $55,272.72.

Judgment reversed without costs, the branch of the November 18, 2005 order which granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to dismiss the complaint for lack of subject matter jurisdiction. The court below granted plaintiff’s motion and denied defendant’s cross motion. The instant appeal by defendant ensued.

While plaintiff listed in its complaint under the heading “First Cause of Action” all three of its claims for no-fault benefits, the recovery of which was assigned to it by three different assignors, it is clear that all three claims were separate and distinct and each was within the Civil Court’s monetary jurisdictional limit of $25,000 (CCA 202, 211; see Karp v Manhattan Mtge. Co., Inc., 11 Misc 3d 142[A], 2006 NY Slip Op 50699[U] [App Term, 1st Dept]). Therefore, the court below properly denied defendant’s cross motion to dismiss the action for lack of subject [*2]matter jurisdiction.

On appeal, defendant contends that the affidavit by plaintiff’s corporate officer, submitted in support of the 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. 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. 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]; 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 judgment is reversed, the branch of the order entered November 18, 2005 which granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 03, 2007