Opinion
2008-836 K C.
Decided May 22, 2009.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered October 9, 2007, deemed from a judgment of the same court entered January 3, 2008 (CPLR 5520 [c]). The judgment, after a nonjury trial, entered pursuant to the October 9, 2007 order granting defendant's motion pursuant to CPLR 4401 to dismiss plaintiff's complaint for failure to prove a prima facie case, dismissed the complaint.
Judgment affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff sought to admit into evidence the claim forms at issue and the assignment of benefits, as well as the denial of claim forms issued by defendant. After defendant's objection to the admission of said documents was sustained, plaintiff orally moved for the admission into evidence of its notice to admit and defendant's response thereto, contending that they, and defendant's affidavit in opposition to plaintiff's prior motion for summary judgment, which motion was withdrawn, were sufficient to establish plaintiff's prima facie case. The court similarly sustained defendant's objection to the admission of the foregoing documents. After plaintiff rested, the court granted defendant's motion pursuant to CPLR 4401 for a directed verdict dismissing the complaint for failure to prove a prima facie case. The instant 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, P.C. v Travelers Home Mar. Ins. Co. , 55 AD3d 644 ). Accordingly, the judgment is affirmed.
Pesce, P.J., Golia and Rios, JJ., concur.