| Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. |
| 2008 NY Slip Op 07846 [55 AD3d 644] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Art of Healing Medicine, P.C., et al., Appellants, v TravelersHome and Marine Insurance Company, Also Known as Travelers Property Casualty Corporation,Respondents. |
—[*1] John P. Humphreys, Melville, N.Y. (David R. Holland and Dominic P. Zafonte of counsel), forrespondents.
In an action to recover assigned first-party no-fault benefits under an insurance contract, theplaintiffs appeal, by permission, from an order of the Appellate Term of the Supreme Court for theSecond and Eleventh Judicial Districts, dated June 4, 2007, which affirmed an order of the Civil Courtof the City of New York, Kings County (Nadelson, J.), entered April 5, 2005, denying their motion forpartial summary judgment.
Ordered that the order dated June 4, 2007 is affirmed, with costs.
The plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law. Theplaintiffs' medical service providers failed to demonstrate the admissibility of their billing records underthe business records exception to the hearsay rule (see CPLR 4518 [a]; Matter of LeonRR., 48 NY2d 117, 122-123 [1979]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-180 [2007]; Kane v Triborough Bridge & Tunnel Auth.,8 AD3d 239, 241 [2004]; Rosenthal v Allstate Ins. Co., 248 AD2d 455, 456-457[1998]). Thus, the plaintiffs' motion was properly denied, regardless of the sufficiency of the opposingpapers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
To the extent that the plaintiffs raise any issue with respect to the defendant's cross motion forsummary judgment dismissing the complaint, that issue is not properly before us, as the cross [*2]motion remains pending and undecided (see Katz v Katz, 68AD2d 536, 542-543 [1979]). Prudenti, P.J., Santucci, McCarthy and Chambers, JJ., concur.