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Raz Acupuncture, P.C. As Assignee of Marina Babayeva v. Geico General Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


November 4, 2011

RAZ ACUPUNCTURE, P.C. AS ASSIGNEE OF MARINA BABAYEVA,
RESPONDENT,
v.
GEICO GENERAL INS. CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered January 15, 2010.

Raz Acupuncture, P.C. v GEICO Gen. Ins. Co.

2011 NY Slip Op 52064(U)

Decided on November 4, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order, insofar as appealed from as limited by the brief, implicitly granted the branch of plaintiff's motion seeking an order finding, for all purposes in the action, that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of plaintiff's motion seeking an order finding, for all purposes in the action, that plaintiff had established its prima facie case is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as implicitly granted the branch of plaintiff's motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case for all purposes in the action.

Plaintiff's motion for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that it had established its prima facie case for all purposes in the action, was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff's business practices and procedures so as to establish that the claim forms annexed to plaintiff's moving papers were admissible under the business records exception to the hearsay rule (CPLR 4518). As a result, the branch of plaintiff's motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case for all purposes in the action should have been denied (see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the order, insofar as appealed from, is reversed, and the branch of plaintiff's motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case for all purposes in the action is denied.

Pesce, P.J., Weston and Rios, JJ., concur.

Decision Date: November 04, 2011

20111104

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