Opinion
2008-1792 N C.
Decided June 25, 2009.
Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), entered July 21, 2008. The order, insofar as appealed from as limited by the brief, denied so much of plaintiff's motion as sought summary judgment with respect to plaintiff's claim for $1,572.26.
Order, insofar as appealed from, affirmed with $10 costs.
PRESENT: RUDOLPH, P.J., MOLIA and NICOLAI, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. 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. The court also granted defendant's cross motion for summary judgment as to plaintiff's claim for $230.09 and denied defendant's cross motion for summary judgment as to plaintiff's claim for $1,572.26. Plaintiff appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment with respect to the claim for $1,572.26.
Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff's billing manager failed to establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518 ( see Alvarez v Prospect Hosp., 68 NY2d 320; Art of Healing Medicine, P.C. v Travelers Home Mar. Ins. Co. , 55 AD3d 644; 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, so much of plaintiff's motion as sought summary judgment with respect to the claim for $1,572.26 was properly denied.
We decline defendant's request to search the record and award it summary judgment dismissing the complaint as to the claim for $1,572.26 ( see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. , 39 AD3d 832).
Rudolph, P.J., Molia and Nicolai, JJ., concur.