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D & R Med. Supply, Inc. v Safeco Ins. Co.
2010 NY Slip Op 51179(U) [28 Misc 3d 127(A)]
Decided on July 7, 2010
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.


Decided on July 7, 2010
SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : STEINHARDT, J.P., PESCE and RIOS, JJ
2009-104 K C.

D & R Medical Supply, Inc. as Assignee of Ronald Britton, Respondent,

against

Safeco Ins. Co., Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered October 8, 2008. The order granted plaintiff's motion for summary judgment.


ORDERED that the order is reversed without costs and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The Civil Court granted plaintiff's motion, and this appeal by defendant ensued.

On appeal, defendant argues, as it did in the Civil Court, that the affidavit submitted by plaintiff's billing manager in support of plaintiff's motion for summary judgment was insufficient to establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518. We agree (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]). Accordingly, the order is reversed and plaintiff's motion for summary judgment is denied.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010