Opinion
2007-166 Q C.
Decided February 8, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated October 17, 2006. The order denied plaintiff's motion for summary judgment.
Order affirmed without costs.
PRESENT: PESCE, P.J., and RIOS, J.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff's motion for summary judgment was supported by an affirmation from plaintiff's counsel, two affidavits by a corporate officer of plaintiff and various documents annexed thereto. The affidavits executed by the corporate officer stated in a conclusory manner that the documents annexed to plaintiff's motion papers were plaintiff's business records. In opposition, defendant argued, inter alia, that the affidavits by plaintiff's officer failed to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. The court below denied the motion on the ground that defendant raised a question of fact as to the timeliness of plaintiff's mailing of the claim. Plaintiff appeals from the denial of its motion for summary judgment.
Since the affidavits submitted by plaintiff's officer were 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment ( see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d 11th Jud Dists 2006]). Consequently, the order denying plaintiff's motion for summary judgment is affirmed, albeit on other grounds.
Pesce, P.J., and Rios, J., concur.