October 14, 2008

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)

https://www.beynensonlaw.com/case-law/art-of-healing-medicine-p-c-v-travelers-home-mar-ins-co-2008-ny-slip-op07846/

Court: Appellate Division, Second Department
Decided: October 14, 2008
Citation: 2008 NY Slip Op 07846 · 55 AD3d 644
Posture: Summary judgment
Outcome: Insurer prevailed
Later history: Overruled by Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430)
Earlier history: Appeal from Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2007 NY Slip Op 51161(U)) (Affirmed)
Later treatment: Contrasted (cf., but see) in 1 and followed in 58 later decisions (see Cited by)
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 (2d Dept 2008)

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 providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records. In an action for assigned no-fault benefits, the providers sought partial summary judgment but failed to establish that their records qualified under the business records exception in CPLR 4518 (a). Their motion therefore had to be denied regardless of the sufficiency of the insurer's opposition. The Appellate Division, Second Department, affirmed the Appellate Term's order sustaining that denial. Any issue concerning the insurer's cross motion to dismiss the complaint was not properly before the appellate court because that cross motion remained pending and undecided.

Reported in New York Official Reports at Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co.

2008 NY Slip Op 07846 [55 AD3d 644]

October 14, 2008

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 10, 2008

Art of Healing Medicine, P.C., et al., Appellants,
v
Travelers Home and Marine Insurance Company, Also Known as Travelers Property Casualty Corporation, Respondents.

—[*1] Amos Weinberg, Great Neck, N.Y., for appellants.

John P. Humphreys, Melville, N.Y. (David R. Holland and Dominic P. Zafonte of counsel), for respondents.

In an action to recover assigned first-party no-fault benefits under an insurance contract, the plaintiffs appeal, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated June 4, 2007, which affirmed an order of the Civil Court of the City of New York, Kings County (Nadelson, J.), entered April 5, 2005, denying their motion for partial summary judgment.

Ordered that the order dated June 4, 2007 is affirmed, with costs.

The plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law. The plaintiffs’ medical service providers failed to demonstrate the admissibility of their billing records under the business records exception to the hearsay rule (see CPLR 4518 [a]; Matter of Leon RR., 48 NY2d 117, 122-123 [1979]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-180 [2007]; Kane v Triborough Bridge & Tunnel Auth., 8 AD3d 239, 241 [2004]; Rosenthal v Allstate Ins. Co., 248 AD2d 455, 456-457 [1998]). Thus, the plaintiffs’ motion was properly denied, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

To the extent that the plaintiffs raise any issue with respect to the defendant’s cross motion for summary judgment dismissing the complaint, that issue is not properly before us, as the cross [*2]motion remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543 [1979]). Prudenti, P.J., Santucci, McCarthy and Chambers, JJ., concur.

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 on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved

Held the providers failed their prima facie burden on partial summary judgment because they did not show their billing records admissible under the CPLR 4518 business-records exception.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDeclined to follow, questioned, overruled or reversed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 208 (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. (2007 NY Slip Op 51161(U)) AffirmedThe providers' billing manager failed to lay a business-records foundation for their partial summary judgment motion.

Cited by (105)

A label shows how the later decision treated this one.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) OverruledA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
AR Med. Rehabilitation, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50510(U)) Contrasted (cf., but see)The provider failed at trial to lay a business-record foundation for bills generated by a separate billing company.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2011 NY Slip Op 21039) FollowedThe provider failed to establish its prima facie case because its third-party biller's affidavit lacked a business-record foundation.
Matter of Carothers v GEICO Indem. Co. (2010 NY Slip Op 09256) FollowedThe provider's billing witness failed to establish a business-records foundation for claim forms merely printed and mailed by the billing company.
Top Choice Med., P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 52063(U)) FollowedThe provider proved two claims remained unpaid and undenied for 30 days, and the insurer's bare denial of receipt raised no triable issue.
Complete Med. Servs. of NY, P.C. v MVAIC (2011 NY Slip Op 51835(U)) FollowedThe provider established its prima facie case against MVAIC, including the assignor's New York residence through a notarized notice of intention to claim.
Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford (2010 NY Slip Op 50889(U)) FollowedThe provider's default judgment motion lacked personal-knowledge proof of its claim and an admissible business-records foundation.
Points of Health Acupuncture, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52445(U)) FollowedThe insurer failed to prove timely denial because its representative began employment after the alleged mailing and supplied no other mailing proof.
Innovative Chiropractic, P.C. v Progressive Ins. Co. (2010 NY Slip Op 50148(U)) FollowedThe insurer established a policy deductible but failed to support its duplicative-billing defense to a separate bill.
Great Wall Acupuncture, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52308(U)) FollowedThe insurer's fee-schedule defense was precluded for one claim because it failed to establish a timely denial of the unpaid balance.

Show all 105 citing decisions

Similar decisions

A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp. (2004 NY Slip Op 50779(U))The providers' billing-manager affidavit failed to establish their prima facie case because it did not identify which provider it covered.
All Mental Care Medicine, P.C. v Travelers Indem. Co. (2007 NY Slip Op 50166(U))The provider's officer failed to establish personal knowledge sufficient to admit the supporting documents as business records.
A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50331(U))The insurer's evidence established a founded belief that the assignors' injuries did not arise from an insured incident.
Avenue N Med., P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 52174(U))The insurer's timely denials and affirmed peer review raised a medical-necessity issue defeating the provider's summary judgment motion.