Opinion
2007-754 Q C.
Decided June 12, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 20, 2007, deemed from a judgment of the same court entered April 6, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 20, 2007 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $1,717.03.
Judgment reversed without costs, order granting plaintiff's motion for summary judgment vacated and plaintiff's motion for summary judgment denied.
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff's motion for summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.
On appeal, defendant asserts that the affidavit by plaintiff's "billing manager and corporate officer," submitted in support of plaintiff's 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 "billing manager and corporate officer" was insufficient to establish that said person 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, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.
In view of the foregoing, we reach no other issue.
Pesce, P.J., and Golia, J., concur.
Steinhardt, J., concurs in a separate memorandum.
Steinhardt, J., concurs in the result in the following memorandum:
While I agree with the result reached by the majority, I do so for other reasons. I find that defendant has come forward with triable issues of fact sufficient to defeat plaintiff's motion for summary judgment.