Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered October 20, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below denied the motion on the ground that plaintiff’s moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its motion for summary judgment.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s corporate officer, submitted in support of the 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.

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 that it submitted its claim forms to defendant thereby entitling it to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). We note that a review of the record on appeal in the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]), as well as of the briefs submitted to the Appellate Division on said appeal, reveals that the issue that movant failed to establish a prima facie case on the motion for [*2]summary judgment was raised for the first time on appeal. Although specific objection was raised by the opposition that said issue may not be considered by the Appellate Division, the court
nevertheless determined the appeal based upon said issue. In view of the foregoing, we also consider defendant’s argument, although raised for the first time on appeal, and hold that plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: January 12, 2007