Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 23, 2005. The order denied plaintiff's motion for summary judgment.

Order 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 employee of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff's employee stated in a conclusory manner that the documents attached to plaintiff's motion papers were plaintiff's business records. In opposition, defendant argued that the affidavit by plaintiff's employee 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. Defendant's counsel also argued that it was plaintiff's burden to establish that it complied with Insurance Law § 5208 by timely filing a notice of claim and that it failed to do so. The court denied plaintiff's motion on the ground that defendant "did not receive a notice of claim" and this appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff's employee was insufficient to establish that said employee 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, plaintiff failed to make a prima facie showing of its entitlement to summary [*2]judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff's motion for summary judgment was properly denied (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]).

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

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007