W.H.O. Acupuncture, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50615(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Randy Sue Marber, J.), dated September 30, 2005, and from an order of the same court, entered February 22, 2006. The order dated September 30, 2005, insofar as appealed from, denied plaintiff’s motion for summary judgment. The order entered February 22, 2006 denied plaintiff’s motion to vacate the order dated September 30, 2006 and to renew plaintiff’s motion for summary judgment.

Appeal from order entered February 22, 2006 dismissed.

Order dated September 30, 2005, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s 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. By order dated September 30, 2005, the court below denied the motion on the ground, inter alia, that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s corporate officer failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein. Plaintiff appeals from the denial of its motion for summary judgment. Plaintiff also appeals from the order entered February 22, 2006 which denied its motion to vacate the September 30, 2005 order and to renew [*2]its motion for summary judgment.

Since 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 proper foundation for the admissibility, 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 (see Fortune Med., P.C. v Allstate Ins. Co., ____ Misc 3d ____[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th 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 order dated September 30, 2005 properly denied plaintiff’s motion for summary judgment.

To the extent plaintiff also appeals from the order entered February 22, 2006, plaintiff has raised no issue with respect thereto and, thus, said appeal is dismissed as abandoned.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 26, 2007