May 22, 2009
Bath Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 51030(U))
https://www.beynensonlaw.com/case-law/bath-med-supply-inc-v-utica-mut-ins-co-2009-ny-slip-op-51030u/
- Decided
- May 22, 2009
- Citation
- 2009 NY Slip Op 51030(U) · 23 Misc 3d 141(A)
- Posture
- Trial
- Outcome
- Insurer prevailed
- Later treatment
- Distinguished in 1 and followed in 1 later decisions (see Cited by)
- Legal questions
- Claimant's prima facie case at trial (see the maps)
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.
Reported in New York Official Reports at Bath Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 51030(U))
| Bath Med. Supply, Inc. v Utica Mut. Ins. Co. |
| 2009 NY Slip Op 51030(U) [23 Misc 3d 141(A)] |
| Decided on May 22, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-836 K C.
against
Utica Mutual Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered October 9, 2007, deemed from a judgment of the same court entered January 3, 2008 (CPLR 5520 [c]). The judgment, after a nonjury trial, entered pursuant to the October 9, 2007 order granting defendant’s motion pursuant to CPLR 4401 to dismiss plaintiff’s complaint for failure to prove a prima facie case, dismissed the complaint.
Judgment affirmed without costs.
At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff sought to admit into evidence the claim forms at issue and the assignment of benefits, as well as the denial of claim forms issued by defendant. After defendant’s objection to the admission of said documents was sustained, plaintiff orally moved for the admission into evidence of its notice to admit and defendant’s response thereto, contending that they, and defendant’s affidavit in opposition to plaintiff’s prior motion for summary judgment, which motion was withdrawn, were sufficient to establish plaintiff’s prima facie case. The court similarly sustained defendant’s objection to the admission of the foregoing documents. After plaintiff rested, the court granted defendant’s motion pursuant to CPLR 4401 for a directed verdict dismissing the complaint for failure to prove a prima facie case. The instant appeal by plaintiff ensued. A judgment was subsequently entered dismissing the complaint.
At trial, “it remained plaintiff’s burden to proffer evidence in admissible form, i.e., by [*2]introducing into evidence the claim form[s] in question by, inter alia, calling a witness to lay a foundation for the admissibility of the claim form[s] as . . . business record[s], which plaintiff failed to do. Accordingly, in light of plaintiff’s failure to establish the admissibility of its claim form[s] as . . . business record[s], plaintiff did not establish a prima facie case and defendant was entitled to judgment dismissing the complaint” (Bajaj v General Assur. Co., 18 Misc 3d 25, 28-29 [App Term, 2d & 11th Jud Dists 2007] [citation omitted]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]). Accordingly, the judgment is affirmed.
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 22, 2009
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.
What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?
This decision: Insufficient: claim forms not admitted as business records / insurer's admissions held not to prove the claim
Affirmed a directed verdict dismissing the complaint because at trial the provider called no witness to lay a business-records foundation for its claim forms, so it did not establish a prima facie case.
Of the 103 decisions on this question in the Second Department courts and the Court of Appeals, 21 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Bajaj v General Assur. (2007 NY Slip Op 27487) FollowedAn insurer's admission that a denial form is genuine does not establish the provider's claim form as an admissible business record.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)The providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Cited by
A label shows how the later decision treated this one.
- Alleviation Med. Servs., PC v Hertz Co. (2015 NY Slip Op 25285) DistinguishedA provider may establish claim submission and receipt through admissions in denials annexed to the defendant's interrogatory response.
- Allstate Social Work & Psychological Servs., PLLC v GEICO Gen. Ins. Co. (2011 NY Slip Op 21234) FollowedDenial-of-claim forms offered at trial to prove billing require a business-record foundation.
- Victory Med. Diagnostics, P.C. v Nationwide Prop. & Cas. Ins. Co. (2012 NY Slip Op 22149)A provider's reasoned objection to a verification request preserves its propriety for determination by the trier of fact.
- Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 22242)The provider proved mailing of requested verification, and the insurer's conclusory denial of receipt raised no triable issue.
Similar decisions
- Bath Med. Supply, Inc. v Allstate Ins. Co. (2007 NY Slip Op 51602(U))The provider failed to establish its prima facie case because its officer's affidavit did not support admission of the attached business records.
- Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50347(U))The insurer's unrebutted peer review proof established that the equipment supplied by the provider lacked medical necessity.
- Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U))The insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal.
- Psychmetrics Med., P.C. v Travelers Ins. Co. (2008 NY Slip Op 52466(U))The provider failed to establish its prima facie case at trial because it called no witness to authenticate its claim form as a business record.
- Bath Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 52316(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to justify delaying summary judgment for discovery.