In this action by a health care provider to recover assigned first-party no-fault benefits, plaintiff's motion for summary judgment was supported by an affirmation from plaintiff's counsel and various documents annexed thereto. However, facts set forth in an attorney's affirmation are of no probative value absent the attorney's assertion of a basis for his or her personal knowledge of the facts ( Zuckerman v. City of New York, 49 NY2d 557; Feratovic v. Lun Wah, Inc., 284 AD2d 368; Melbourne Med., P.C. v. Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d 11th Jud Dists 2004]). Plaintiff's counsel did not lay a sufficient foundation to establish that what counsel represented to be plaintiff's claim forms were admissible under the business records exception to the hearsay rule ( see CPLR 4518; see also People v. Kennedy, 68 NY2d 569; Trotti v. Estate of Buchanan, 272 AD2d 660; Dayanim v. Unis, 171 AD2d 579). To the extent defendant may have issued claim denial forms, said claim denials merely established that defendant received claim forms submitted by, or on behalf of plaintiff, but they did not concede the admissibility of the purported claim forms or the facts set forth therein. In light of plaintiff's counsel's apparent lack of personal knowledge, plaintiff failed to establish its prima facie entitlement to summary judgment through the submission of competent evidence (CPLR 3212 [b]; see CPLR 4518; People v. Kennedy, 68 NY2d 569, supra; Zuckerman v. City of New York, 49 NY2d 557, supra; Read v. Ellenville Natl. Bank, 20 AD3d 408; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742; Stahl v. Stralberg, 287 AD2d 613).
We note that even if plaintiff had established a prima facie case, in the instant matter, defendant's opposition to plaintiff's motion for summary judgment amply demonstrated the existence of a triable issue of fact as to whether "the alleged injur[ies] do not arise out of an insured incident," a defense which may be raised for the first time in opposition to plaintiff's motion for summary judgment ( Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 199). As a result, upon reargument, the court should have denied plaintiff's motion for summary judgment ( see id.; Zuckerman v. City of New York, 49 NY2d 557, supra).
Pesce, P.J., Weston Patterson and Belen, JJ., concur.