New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
April 27, 2012
JAMHIL MEDICAL, P.C. AS ASSIGNEE OF ALBERT CHRISTIE AND CHEDDI HOLNESS, RESPONDENT,
ALLSTATE INS. CO., APPELLANT.
Appeal from an order of the Civil Court of the City of New York, Kings County (Jacqueline D. Williams, J.), entered May 3, 2010.
Jamhil Med., P.C. v Allstate Ins. Co.
Decided on April 27, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and ALIOTTA, JJ
The order, insofar as appealed from as limited by the brief, granted plaintiff's motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered June 28, 2010, pursuant to the May 3, 2010 order, awarding plaintiff the principal sum of $11,957.93 (see CPLR 5501 [c]).
ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff's motion for summary judgment is vacated, and plaintiff's motion is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as granted plaintiff's motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Contrary to the finding of the Civil Court, plaintiff failed to establish its prima facie entitlement to summary judgment. Plaintiff relied upon its claim forms to establish the fact and the amount of the loss sustained; however, plaintiff failed to demonstrate that the claim forms annexed to its motion papers were admissible under the business records exception to the hearsay rule, which allows a document to be used as proof of the "act, transaction, occurrence or event" recorded in the document (CPLR 4518 [a]; see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 ; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As plaintiff failed to make out its prima facie case, its motion should have been denied. In light of the foregoing, we reach no other issue.
Accordingly, the judgment is reversed, so much of the order entered May 3, 2010 as granted plaintiff's motion for summary judgment is vacated, and plaintiff's motion is denied.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 2012
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