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Andromeda Med. Care, P.C. v Utica Mut. Ins. Co.
2009 NY Slip Op 51629(U) [24 Misc 3d 139(A)]
Decided on July 24, 2009
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 24, 2009
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-505 K C.

Andromeda Medical Care, P.C. a/a/o ANTOINETTE WALKER and MARY YOU, Appellant,

against

Utica Mutual Ins. Co., Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered July 10, 2007. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion seeking summary judgment and sanctions.


Order modified by providing that defendant's motion for summary judgment is denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion seeking summary judgment and sanctions.

The affidavits proffered by defendant in support of its motion for summary judgment were executed out of state. Although the affidavits were accompanied by documents that purported to be certificates of conformity, the certificates did not comply with Real Property Law § 299-a and, thus, the affidavits did not comply with CPLR 2309 (c) (see Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]). Since this defect was duly objected to by plaintiff in the Civil Court, defendant failed to introduce competent evidence in admissible form establishing its entitlement to summary judgment (see Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 127[A], 2008 NY Slip Op 50498[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant's motion for summary judgment should have been denied (id.).

Contrary to plaintiff's contention, plaintiff's cross motion for summary judgment was properly denied. Plaintiff failed to establish that its billing records constituted evidence in admissible form pursuant to CPLR 4518 (see 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]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d [*2]& 11th Jud Dists 2006]). Plaintiff's remaining contentions lack merit.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 24, 2009