Lenox Hill Radiology, P.C. v American Tr. Ins. Co. (2008 NY Slip Op 50330(U))

Civil Court of the City of New York, New York County

015066/2007

The appearances of counsel are:

Joaquin J. Lopez, Esq.

Attorney for plaintiff

(516) 741-4799

William R. Larkin, Esq.

Attorney for defendant

(212) 629-9690

Anil C. Singh, J.

Plaintiff medical provider issued bills to defendant insurance company seeking reimbursement under the No-Fault Law for services rendered to plaintiff’s assignor, Ali Sardar, who was allegedly injured in an automobile accident. The claim was denied, and plaintiff seeks recovery on these bills.

Defendant moves for moves for summary judgment dismissing the complaint without prejudice on the ground that the assignor is a taxicab driver who was injured while driving a taxicab. Accordingly, there is an issue as to whether Worker’s Compensation benefits are available which must be determined before the Workers’ Compensation Board.

Plaintiff opposes the motion and cross-moves for summary judgment. It urges that the elements of the prima facia case are not in dispute. Defendant admits that it received plaintiff’s claim and did not make payment pursuant to the thirty-day rule. It opposes the motion, arguing that defendant has failed to submit evidence that the assignor was employed at the time of the accident.

Defendant relies on two documents in support of its position that Mr. Sardar was [*2]employed at the time of the accident. The first is the application for no-fault benefits (the “NF-2”) filled out on behalf of Mr. Sardar. The application is signed by Mr. Sardar. Question 16 states as follows: “At the time of your accident were you in the course of your employment.” This question is answered “Yes.”

The second document is the MV-104 police accident report filled out by Officer Balloin describing what occurred at the time of the accident. The report states that the Sardar vehicle is a taxi.

Plaintiff urges that neither document is admissible. Defendant has failed to lay a foundation establishing that the NF-2, which was prepared by another entity, is a business record of defendant. Further, the information contained in the police report is inadmissable hearsay.

I disagree. CPLR 4518 is an exception to the hearsay rule and allows records to come into evidence provided it can be established that the writing was made in the regular course of business; it was the regular course of business to make the writing; and the writing was made at or about the time of the transaction. The rule is premised on the notion that routinely gathered information will be trustworthy and that the maker is under an obligation to record accurate information (People v. Kennedy, 68 NY2d 569 [1986]).

Records of third parties may be received in evidence when a company relies on those records in conducting its business (People v. Di Salvo, 284 AD2d 547 [2d Dept. 2001]). Records of third parties have been admitted where there is a business duty to give and record accurate information (Pencom Sys. v. Shapiro, 237 AD2d 144 [1st Dept. 1997]); see also People v. McKissick, 281 AD2d 212 [1st Dept. 2001]).

The NF-2 satisfies the requirements of reliability. The person completing the NF-2 has a duty to fill out the application accurately. Clearly, defendant insurance company must be able to rely on the information contained in the NF-2 in order to process the application for no-fault benefits.

The court may consider a police accident report “under the business record exception to the hearsay rule to the extent that it was based upon the personal observations of the police officer present at the scene and under a business duty to make it” (Westchester Med. Ctr. v. State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 753 [2d Dept. 2007]. The first line on the police accident report asks for the following information: “Not investigated at Scene”; and “Accident Reconstruction.” Neither box was checked. Accordingly, Police Officer Balloin’s notation that the Sardar vehicle was a “taxi” is necessarily based on his observation at the scene of the accident.

The next issue is whether defendant has submitted sufficient evidence that Mr. Sardar was employed at the time of the accident. Worker’s Compensation is primary and, where the issue of its coverage arises, it must be presented first to the Worker’s Compensation Board (Arvatz v. Empire Mut. Ins. Co., 171 AD2d 262, 268 [1st Dept. 1991]; see also Mattaldi v. Beth Israel Med. Ctr., 297 AD2d 234 [1st Dept. 2002]) (threshold question whether plaintiff was employed must be determined by the Workers’ Compensation Board). As the Court of Appeals explained:

Where the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions. The Legislature has placed the responsibility for these [*3]determinations with the Workmen’s Compensation Board and there it must remain. (O’Rourke v. Long, 41 NY2d 219, 228 [1976]).

Therefore, in this action defendant must show only that there is “potential merit” to its claim that Mr. Sardar was employed at the time of the accident so as to trigger a determination by the Workers’ Compensation Board (A.B. Med. Servs. PLLC v. American Tr. Ins. Co., 8 Misc 3d 127(A) [App. Term 2d Dept]).

The statement in the NF-2 that Mr. Sardar was employed at the time of the accident and the observation of the police officer that the vehicle was a taxi is sufficient for defendant to meet its burden. Plaintiff fails to tender any evidence as to Mr. Sardar’s employment status.

For these reasons, defendant’s motion for summary judgment is granted, and the complaint is dismissed without prejudice. Plaintiff’s cross-motion for summary judgment is denied as moot.

The clerk is directed to enter judgment accordingly.

The foregoing constitutes the decision and order of the court.

Date: February 25, 2008_____________________________

New York, New YorkAnil C. Singh