Opinion
2007-352 K C.
Decided March 10, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered January 16, 2007. The order denied plaintiff's motion for summary judgment.
PRESENT: WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the court denied plaintiff's motion for summary judgment finding that defendant raised an issue of fact by demonstrating that its time to pay or deny plaintiff's claim was tolled due to timely verification requests. The instant appeal by plaintiff ensued.
On appeal, defendant asserts that the affidavit by plaintiff's corporate officer, submitted in support of plaintiff's motion, failed to lay a proper foundation for 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, the order denying plaintiff's motion for summary judgment is affirmed, albeit on other grounds.
Weston Patterson, J.P., Golia and Rios, JJ., concur.