Appeal from a decision of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), dated July 25, 2005, deemed from a judgment of the same court entered December 21, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff did not call any witnesses. Rather, plaintiff orally moved for the admission into evidence of its notice to admit and defendant's response thereto, contending that they, and the exhibits annexed to plaintiff's prior motion for summary judgment and defendant's papers in opposition thereto, were sufficient to establish plaintiff's prima facie case. Defendant objected and cross-moved for a directed verdict
dismissing the complaint. The Civil Court granted defendant's cross motion for a directed verdict, holding that, without testimony from a witness to establish the admissibility of the documents upon which plaintiff sought to rely, plaintiff failed to establish a prima facie case. This appeal by plaintiff ensued. A judgment was subsequently entered dismissing the complaint.

At trial, "it remained plaintiff's burden to proffer evidence in admissible form, i.e., by introducing into evidence the claim form[s] in question by, inter alia, calling a witness to lay a foundation for the admissibility of the claim form[s] as . . . business record[s], which plaintiff failed to do. Accordingly, in light of plaintiff's failure to establish the admissibility of its claim form[s] as . . . business record[s], plaintiff did not establish a prima facie case and defendant was entitled to judgment dismissing the complaint" (Bajaj v General Assur. Co., 18 Misc 3d 25, 28-29 [App Term, 2d & 11th Jud Dists 2007] [citation omitted]; see also Art of Healing Medicine, [*2]P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]).

Weston Patterson, J.P., Golia and Steinhardt, JJ, concur.
Decision Date: March 05, 2009