Opinion
2007-1287 N C.
Decided October 9, 2008.
Appeal from an order of the District Court of Nassau County, Third District (Norman Janowitz, J.), entered May 14, 2007. The order granted plaintiff's motion for summary judgment.
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
Order reversed without costs and plaintiff's motion for summary judgment denied.
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, an affidavit by plaintiff's employee and various documents annexed thereto. In opposition to plaintiff's motion, defendant argued, inter alia, that the affidavit of plaintiff's employee failed to lay a proper foundation for admission of the documents attached to plaintiff's moving papers as business records pursuant to CPLR 4518 (a). The court below granted plaintiff's motion for summary judgment, finding that plaintiff made a prima facie case and that defendant failed to raise a triable issue of fact. The instant appeal by defendant ensued.
Since the affidavit of plaintiff's employee did not refer to the documents attached to plaintiff's moving papers, let alone assert that they are plaintiff's business records ( see CPLR 4518 [a]), plaintiff failed to make a prima facie showing of its entitlement to summary judgment ( see 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]). Consequently, plaintiff's motion for summary judgment should have been denied.
In light of the foregoing, we reach no other issue.
McCabe, J.P., Tanenbaum and Molia, JJ., concur.