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Roman Chiropractic, P.C. v Law Off. of Moshe D. Fuld, P.C.
2008 NY Slip Op 50286(U) [18 Misc 3d 137(A)]
Decided on February 8, 2008
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 8, 2008
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., and RIOS, J.
2006-1672 K C

Roman Chiropractic, P.C. a/a/o ANA ACEVEDO, JOSE ACEVEDO, LESTER HUGGINS, BEATA OCHMAN, EDWIN ROBLES, ALEXANDER RYABCHENKO, MARTIN SARNACKI, GREGORY SHVARTSMAN, VLADMIR VOLYNETS and RONKA WEISLAW, Respondent, -and - The

against

Law Office of Moshe D. Fuld, P.C., Plaintiff, NEW YORK CENTRAL MUTUAL FIRE INS. CO., Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), dated March 27, 2006. The order granted plaintiff's motion for summary judgment.


Order reversed without costs 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. The court below granted the motion and the instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit by plaintiff's principal, 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 [*2]case. We agree. The affidavit submitted by plaintiff's principal was insufficient to establish that he 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 2007]; 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 is denied.

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

Pesce, P.J., and Rios, J., concur.
Decision Date: February 08, 2008