Appeal from a decision of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), dated November 16, 2005, deemed from a judgment of the same court entered December 21, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

At trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff offered the testimony of its former employee and sought the admission of, inter alia, its purported claim forms into evidence. Defendant objected on the ground that said documents were hearsay and that plaintiff failed to lay a foundation for their admission pursuant to CPLR 4518. The court reserved decision. Plaintiff rested without calling any further witnesses. Defendant moved to dismiss the complaint due to plaintiff's failure to make a prima facie case. The court reserved decision on that motion as well. After reviewing the parties' submissions, the court dismissed the complaint, finding that plaintiff failed to make a prima facie case.

While plaintiff produced a witness to testify regarding the claim forms plaintiff sought to have admitted into evidence, because said witness did not testify at all as to the generation of such claim forms, they were not admissible as business records (see CPLR 4518). Accordingly, plaintiff failed to establish a prima facie case (see Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]). Consequently, the judgment is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: January 09, 2009