March 10, 2009

PDG Psychological, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50436(U))

https://www.beynensonlaw.com/case-law/pdg-psychological-p-c-v-progressive-cas-ins-co-2009-ny-slip-op50436u/

Court: Appellate Term, Second Department
Decided: March 10, 2009
Citation: 2009 NY Slip Op 50436(U) · 22 Misc 3d 141(A)
Posture: Trial
Outcome: Insurer prevailed
Issues: Provider's prima facie case Trial and evidence
Legal questions: Claimant's prima facie case at trial (see the maps)

Cite as

PDG Psychological, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 141(A), 2009 NY Slip Op 50436(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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's trial witnesses failed to establish a business-record foundation for its bill under CPLR 4518. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after a nonjury trial. The provider offered its file clerk's testimony and, after a hearsay objection, called the insurer's litigation specialist, who acknowledged receipt of the bill. Neither witness demonstrated sufficient personal knowledge to establish the bill's admissibility as a business record. The bill was therefore excluded, and the provider failed to make a prima facie case. The insurer rested without presenting witnesses and obtained a directed verdict; the appellate court reached no other issue.

Reported in New York Official Reports at PDG Psychological, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50436(U))

[*1]

PDG Psychological, P.C. v Progressive Cas. Ins. Co.

2009 NY Slip Op 50436(U) [22 Misc 3d 141(A)]

Decided on March 10, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 10, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON PATTERSON, J.P., GOLIA and STEINHARDT, JJ
2008-89 Q C.

PDG Psychological, P.C. a/a/o CYNTHIA GONZALES, Appellant,
against
Progressive Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), dated October 6, 2005, deemed from a judgment of the same court entered March 1, 2006 (see CPLR 5520 [c]). The judgment, after a nonjury trial, 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 offered the testimony of its file clerk and sought the admission into evidence of, inter alia, its purported claim form. Defendant objected on the ground that said document was hearsay and that plaintiff had failed to lay a foundation for its admission into evidence pursuant to CPLR 4518. Plaintiff then called defendant’s litigation specialist, who testified that defendant received the bill at issue. However, the Civil Court did not admit plaintiff’s bill into evidence. After defendant rested without calling any witnesses, the Civil Court granted defendant’s motion for a directed verdict, finding that plaintiff failed to make a prima facie case. This appeal by plaintiff ensued. A judgment was subsequently entered.

The testimony by the witnesses called by plaintiff did not demonstrate that they possessed sufficient personal knowledge to lay a foundation to establish that plaintiff’s bill was admissible as a business record (see CPLR 4518; 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]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff failed to establish a prima facie case (see Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the judgment is [*2]affirmed.

In light of the foregoing, we reach no other issue.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: March 10, 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.

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: Insufficient: claim forms not admitted as business records / insurer's admissions held not to prove the claim

Affirmed a directed verdict because neither the provider's file clerk nor the insurer's litigation specialist, who admitted receipt, could lay a business-records foundation for the bill.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

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.

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.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51879(U))The provider's attorney affirmation failed to establish the admissibility of its claim forms or a prima facie entitlement to judgment.
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.

Similar decisions

PDG Psychological, P.C. v Travelers Ins. Co. (2009 NY Slip Op 50437(U))The provider failed to prove its prima facie case at trial because its witness could not establish a business-record foundation for the claim forms.
Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 51528(U))A denial form offered to show that a claim was denied, rather than to prove its contents, needs no CPLR 4518 business-record foundation.
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.
PDG Psychological P.C. v Eveready Ins. Co. (2006 NY Slip Op 52305(U))The provider failed to establish a business-record foundation for its claim forms through its corporate officer's affidavit.
Empire State Psychological Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51869(U))The provider failed to prove its prima facie case at trial by offering only the insurer's interrogatory response acknowledging bills.