Opinion
2007-60 K C.
Decided March 13, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered October 25, 2006. The order granted plaintiffs' cross motion for partial summary judgment.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
Order reversed without costs and plaintiffs' cross motion for partial summary judgment denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to strike the complaint pursuant to CPLR 3126 and plaintiffs cross-moved for partial summary judgment. After defendant's motion was resolved by a so-ordered stipulation, the court granted plaintiffs' cross motion for partial summary judgment. The instant appeal by defendant ensued.
On appeal, defendant asserts that the affidavit by plaintiffs' billing manager, submitted in support of plaintiffs' cross motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiffs' moving papers and that, as a result, plaintiffs failed to establish a prima facie case. We agree. The affidavit submitted by plaintiffs' billing manager was insufficient to establish that said person possessed personal knowledge of plaintiffs' practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiffs' moving papers. Accordingly, plaintiffs failed to make a prima facie showing of their 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, plaintiffs' cross motion for partial summary judgment is denied.
In light of the foregoing, we reach no other issue.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.