Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), entered September 24, 2008. The order denied plaintiff's motion for summary judgment.

Order affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that plaintiff did not make a prima facie showing of its entitlement to judgment as a matter of law. The District Court denied plaintiff's motion, holding that the affidavit by plaintiff's biller failed to establish a prima facie case because it did not demonstrate that the documents annexed to plaintiff's motion were admissible as business records. This appeal by plaintiff ensued.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff's biller failed to establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Plaintiff's remaining contentions are wholly without merit. Consequently, plaintiff's motion for summary judgment was properly denied.

Rudolph, P.J., and Nicolai, J., concur.

Molia, J., taking no part.
Decision Date: June 25, 2009