Opinion
2006-1970 Q C.
Decided on February 8, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated July 19, 2006, deemed from a judgment entered November 14, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 19, 2006 order granting plaintiff's cross motion for summary judgment and denying, in effect as academic, defendant's motion to compel depositions, awarded plaintiff the principal sum of $4,670.12.
Judgment reversed without costs, order dated July 19, 2006 vacated, plaintiff's cross motion for summary judgment denied and matter remanded to the court below for determination of defendant's motion to compel depositions.
PRESENT: PESCE, P.J., and RIOS, J.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for an order, pursuant to CPLR 3124 and 3126, to compel depositions of plaintiff, plaintiff's assignor and the treating physician, and plaintiff cross-moved for summary judgment. Plaintiff's cross motion was supported by an affirmation from plaintiff's counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. The affidavit stated in a conclusory manner that the documents annexed thereto were plaintiff's business records. Defendant opposed plaintiff's cross motion. The court granted plaintiff's cross motion for summary judgment and denied, in effect as academic, defendant's motion to compel depositions. The instant appeal by defendant ensued.
On appeal, defendant asserts that the affidavit by plaintiff's corporate officer, submitted in support of plaintiff's cross motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff's moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff's corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff's practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff's moving papers. Accordingly, plaintiff failed to make a prima facie showing of its 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, plaintiff's cross motion for summary judgment is denied.
Inasmuch as the lower court denied defendant's motion to compel depositions as a result of its conclusion that plaintiff was entitled to summary judgment, the matter is remanded to the court below for a determination of defendant's motion.
In light of the foregoing, we reach no other issue.
Pesce, P.J., and Rios, J., concur.