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Horton Medical, P.C. v. Liberty Mutual Insurance Co.

Supreme Court of New York, Second Department

January 24, 2014

Horton Medical, P.C. and FIRST AID OCCUPATIONAL THERAPY, PLLC a/a/o CARLOS J. JOLEANES, Appellants,
v.
Liberty Mutual Insurance Company, Respondent.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 19, 2008. The order denied plaintiffs' motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiffs' unopposed motion for summary judgment on the ground that the supporting affidavit failed "to lay a foundation for the admissibility of the exhibits as business records." The instant appeal by plaintiffs ensued.

Upon a review of the record, we are in agreement with the Civil Court's determination that the affidavit by plaintiffs' billing manager in support of plaintiffs' motion for summary judgment failed to comply with CPLR 4518 (see 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 denying plaintiffs' motion for summary judgment is affirmed.

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


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