| Astoria Quality Med. Supply v Allstate Ins. Co. |
| 2007 NY Slip Op 51977(U) [17 Misc 3d 130(A)] |
| Decided on September 4, 2007 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene
Bluth, J.), entered February 10, 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 moved for summary judgment. The court below denied the motion and the instant appeal ensued.
On appeal, defendant asserts that the affidavit of plaintiff's employee, submitted in support of
the motion, failed to lay a proper foundation for the admission of the documents annexed to
plaintiff's moving papers and that, as a result, plaintiff failed to establish a prima facie case. We
agree. 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. 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]).
[*2]
Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007