March 5, 2009

Dilon Med. Supply Corp. v Travelers Ins. Co. (2009 NY Slip Op 50389(U))

https://www.beynensonlaw.com/case-law/dilon-med-supply-corp-v-travelers-ins-co-2009-ny-slip-op-50389u/

Court: Appellate Term, Second Department
Decided: March 5, 2009
Citation: 2009 NY Slip Op 50389(U) · 22 Misc 3d 139(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

Dilon Med. Supply Corp. v Travelers Ins. Co., 22 Misc 3d 139(A), 2009 NY Slip Op 50389(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 failed to establish its prima facie case at trial because it did not establish the admissibility of its claim forms as business records. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after a nonjury trial. The provider called no witnesses and instead sought to rely on its notice to admit, the insurer's response, and exhibits submitted on an earlier summary judgment motion and in opposition. The insurer objected and sought a directed verdict. Following Bajaj v General Assur. Co., the court concluded that the provider still bore the trial burden of presenting admissible claim forms and had failed to lay the necessary foundation. The insurer was therefore entitled to dismissal.

Reported in New York Official Reports at Dilon Med. Supply Corp. v Travelers Ins. Co. (2009 NY Slip Op 50389(U))

[*1]

Dilon Med. Supply Corp. v Travelers Ins. Co.

2009 NY Slip Op 50389(U) [22 Misc 3d 139(A)]

Decided on March 5, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 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
2008-223 Q C.

Dilon Medical Supply Corp. a/a/o MARTINE DEDE, Appellant,
against
Travelers Insurance Co., Respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), dated July 25, 2005, deemed from a judgment of the same court entered December 21, 2007 (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 did not call any witnesses. Rather, plaintiff orally moved for the admission into evidence of its notice to admit and defendant’s response thereto, contending that they, and the exhibits annexed to plaintiff’s prior motion for summary judgment and defendant’s papers in opposition thereto, were sufficient to establish plaintiff’s prima facie case. Defendant objected and cross-moved for a directed verdict
dismissing the complaint. The Civil Court granted defendant’s cross motion for a directed verdict, holding that, without testimony from a witness to establish the admissibility of the documents upon which plaintiff sought to rely, plaintiff failed to establish a prima facie case. This 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 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, [*2]P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]).

Weston Patterson, J.P., Golia and Steinhardt, JJ, concur.
Decision Date: March 05, 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 the provider called no witness to lay a business-records foundation for its claim forms, relying instead on notice-to-admit responses and motion papers.

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.

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.

Similar decisions

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.
Dilon Med. Supply Corp. v Progressive Cas. Ins. Co. (2006 NY Slip Op 50908(U))The insurer failed to show tolling by EUO requests because it did not establish an EUO endorsement in the applicable policy.
V.S. Med. Servs., P.C. v Travelers Ins. Co. (2009 NY Slip Op 50048(U))The provider failed to establish a prima facie case because its witness gave no testimony about the generation of its claim forms.
Bath Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 51030(U))The provider failed to prove its trial prima facie case because it did not establish admissibility of its claim forms as business records.
DJS Med. Supplies, Inc. v Travelers Prop. Cas. Ins. Co. (2009 NY Slip Op 50584(U))The provider's officer affidavit failed to establish the personal knowledge needed to admit its supporting documents as business records.