November 12, 2013

Alev Med. Supply, Inc. v Geico Gen. Ins. Co. (2013 NY Slip Op 51915(U))

https://www.beynensonlaw.com/case-law/alev-med-supply-inc-v-geico-gen-ins-co-2013-ny-slip-op51915u/

Court: Appellate Term, Second Department
Decided: November 12, 2013
Citation: 2013 NY Slip Op 51915(U) · 41 Misc 3d 138(A)
Posture: Trial
Issues: Trial and evidence Provider's prima facie case
Legal questions: Claimant's prima facie case at trial (see the maps)

Cite as

Alev Med. Supply, Inc. v Geico Gen. Ins. Co., 41 Misc 3d 138(A), 2013 NY Slip Op 51915(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider was denied an opportunity to introduce claim forms and elicit nonpayment testimony before judgment was directed against it. At a nonjury trial jointly conducted with seven other actions, counsel marked exhibits for identification, but the Civil Court dismissed the complaint before counsel could offer them. The provider's witness had sufficient personal knowledge of its business practices to establish a business-record foundation under CPLR 4518 and nonpayment. The claim forms would have constituted prima facie evidence of the fact and amount of loss. The Appellate Term, Second Department, reversed the judgment and remitted the matter for a new trial because the directed judgment prematurely cut off the provider's proof.

Reported in New York Official Reports at Alev Med. Supply, Inc. v Geico Gen. Ins. Co. (2013 NY Slip Op 51915(U))

[*1]

Alev Med. Supply, Inc. v Geico Gen. Ins. Co.

2013 NY Slip Op 51915(U) [41 Misc 3d 138(A)]

Decided on November 12, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Alev Medical Supply, Inc. as Assignee of RUSSELL IRBY, Appellant, —
against
Geico General Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 10, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, jointly tried with seven other actions, plaintiff’s counsel marked several exhibits for identification. However, before he had the opportunity to move those exhibits into evidence, the Civil Court directed judgment in favor of defendant and dismissed plaintiff’s complaint, finding that plaintiff had failed to establish its prima facie case.

At the nonjury trial, plaintiff presented a witness whose personal knowledge of plaintiff’s business practices and procedures was sufficient to lay a foundation for plaintiff’s claim forms to be admitted into evidence as business records and to establish the nonpayment of the claims (CPLR 4518; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also Gagen v Kipany Prods., Ltd., 27 AD3d 1042 [2006]; Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882 [2005]). These claim forms would have constituted prima facie evidence of the fact and the amount of the loss sustained (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]). Since the Civil Court erroneously directed judgment in favor of defendant before plaintiff’s counsel had the opportunity to move the claim forms into evidence or to elicit testimony regarding the nonpayment of the claims, the action should be remitted to the Civil Court for a new trial.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 12, 2013

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case at trial

Open the full map

What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?

This decision: Claimant's trial proof held to make out its prima facie case

Held the provider's trial witness had enough personal knowledge of its business practices to lay a business-records foundation for the claim forms and prove nonpayment, so directing judgment for the insurer before the forms were offered was error.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decision

Of the 103 decisions on this question in the Second Department courts and the Court of Appeals, 40 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co. (2012 NY Slip Op 22200) FollowedMedical records supporting a peer review are admissible to show information conveyed to the insurer rather than the truth of their contents.

Similar decisions

Alev Med. Supply, Inc. v Eveready Ins. Co. (2012 NY Slip Op 52184(U))The provider's action was premature because the insurer had not received all verification requested before suit commenced.
Alev Med. Supply, Inc. v Government Empls. Ins. Co. (2013 NY Slip Op 51096(U))A peer review report is inadmissible at trial to prove lack of medical necessity; that issue is resolved through medical expert testimony.
Alur Med. Supply, Inc. v GEICO Ins. Co. (2017 NY Slip Op 51896(U))The provider's judgment for medical-supply no-fault benefits after a nonjury trial was reversed, and a new trial was ordered.
Alev Med. Supply, Inc. v Government Employees Ins. Co. (2014 NY Slip Op 50130(U))The provider's evidentiary objections failed, and dismissal of the challenged claims for lack of medical necessity was affirmed.
LOF Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50595(U))The provider established its claims through admissible billing records and an order precluding evidence of the medical-necessity defense.