Administrative Assets v Zurich Am. Ins. Co. (2009 NY Slip Op 52261(U))

Civ Ct, Richmond County

Index No.: 21379/07

Counsel for Defendant:

Gina M. DiGaudio, Esq.

GULLO & ASSOCIATES, LLP

520 86TH Street

Brooklyn, New York 11209

718-238-9555

Counsel for Plaintiff:

Joaquin J. Lopez, Esq.

BAKER, SANDERS, BARSHAY, GROSSMAN, FASS, MUHLSTOCK & NEUWIRTH

150 Herricks Road

Mineola, NY 11501

516-741-4799

Katherine A. Levine, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

Plaintiff Administrative Assets (“plaintiff” or “Assets”), a medical service provider, commenced this action, pursuant to the No-Fault Law, to recover payments from defendant Zurich American Transit Insurance Company (“defendant” or “Zurich”) for services plaintiff rendered to its assignor Frank Saccente (“assignor” or “Saccente”) as a result of the injuries that he sustained in an automobile accident.

Defendant moves to dismiss the action on the ground that the assignor is entitled to Workers Compensation because the assignor was an employee who was injured on the job while working, thus granting the Workers Compensation Board (“Board”) primary jurisdiction over issues of coverage. In support of its motion, defendant presented the affidavit of its no fault specialist – Mr. Herbert – who, in a conclusory fashion, described how defendant ” obtained documents from the Workers’ Compensation Board which revealed that the assignor was injured in the course of employment.” Specifically, attached to his affidavit is an “Employer’s Report of Work-Related

Accident”(“Employer’s Report”) filled out by a third party – the assignor’s employer.

Plaintiff asserts that a no-fault insurer asserting a defense that workers compensation is primary must establish, as a threshold matter, that the claimant was employed at the time of the underlying motor vehicle accident. Plaintiff asserts that defendant failed to submit any admissible evidence on this point that the claims specialist’s affidavit is insufficient to lay a foundation to admit a hearsay document (the Employer’s Report) into evidence. Specifically, under Dan Medical P.C. v. NY Central Mutual Fire, Ins.,14 Misc 3d 44 (App. Term, 2d Dept. 2006), the claims specialist failed to demonstrate that he possessed sufficient personal knowledge of defendant’s business offices practices and procedures so as to lay the foundation for the [*2]admission of the assignor’s Employer’s Report.

The Court finds that the Employer’s Report is inadmissable, since defendant has failed to lay a foundation establishing that this Report, which was prepared by a third party – the assignor’s employer – is a business record of defendant. As such, the information contained in the report is inadmissable hearsay.

In the leading case of People v. Kennedy, 68 NY2d 569 (1986), the Court addressed several issues relating to the hearsay exception to business records contained in CPLR 4518(a). This provision provides that “[t]he term business includes a business, profession, occupation and calling of every kind.” The business records exception “grew out of considerations of necessity and trustworthiness – the necessity for alternatives to permit large and small business to prove debts by their records of account, and the unusual degree of trustworthiness and reliability of such records owing to the fact that they were kept regularly, systematically, routinely and contemporaneously.” Id at 579 citing 5 Wigmore, Evidence, §§ 1421-22, 1546. “The essence of the business records exception …is that records systematically made for the conduct of a business …are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct of the enterprise.” 68 NY2d at 579.

The foundation requirements of CPLR 4518, which incorporate these common law precepts,

mandate that the proponent establish that the writing was made in the regular course of business, i.e. that the writing reflects a routine, regularly conducted business activity; that it was the regular course of business to make the writing; and that the writing was made at or about the time of the transaction; and that the writing was made at or about the time of the transaction.” Id at 580. See, Lenox Hill Radiology P.C. (Sardar) v. American Transit Ins CO., 2008 NY Slip Op. 50330U, 18 Misc 3d 1136A (Civil Ct., NY Co. 2008). In Aram Barbikian v. Nikki Midtown LLC, 60 AD3d 470, 471-72 (1st Dept. 2009), for example, the court held that the bookkeeper’s affidavit did not lay the foundation

necessary for the admissibility of purported employment records and a computer printout submitted to show where the employees were on the date of the attack. The bookkeeper did not state that she was in charge of employment or employment records or otherwise have firsthand knowledge of the plaintiff.

Similarly, here, the affidavit of John Herbert does not specify defendant’s regular business procedures for obtaining information regarding an assignor’s employment status vis a vis workers compensation, and defendant clearly does not have personal knowledge much less any knowledge as to how the third party – the assignor’s employer – filled out the Employer’s [*3]Report or submitted it to the Workers Compensation Board. The affidavit is silent as to whether either it was either defendant’s or the third party employer’s business duty to record the act, transaction or occurrence sought to be admitted.

As such, the third party report may not be considered in this summary judgment motion and the defendant therefore cannot show, in its papers that there is potential merit’ to its claim that [the assignor] was employed at the time of the accident so as to trigger a determination by the Workers’ Compensation Board. Lenox Hill Radiology, supra citing A.B. Medical Serv. PLLC v. American Transit Ins. Co., 8 Misc 3d 127A, 801 NYS2d 776 (App. Term, 2d Dept. 2005 ). In light of the inadmissibility of this record, this court finds that defendant has not submitted sufficient evidence that the assignor was employed at the time of the accident, that workers compensation is primary, and that the issue of coverage must first be presented to the Workers Compensation Board. See, Arvatz v.v. Empire Mut. Ins. Co., 171 AD2d 262, 268 (1st Dept. 1991); Lenox Hill Radiology, supra .

As defendant’s motion for summary judgment is denied, this case shall proceed to trial.

The foregoing constitutes the decision and order of the court.

Dated:October 1, 2009

Staten Island, NYHON. KATHERINE A. LEVINE

Judge, Civil Court

ASN by _______ on ____________

A P P E A R A N C E S

Counsel for Defendant:

Gina M. DiGaudio, Esq.

GULLO & ASSOCIATES, LLP

520 86TH Street

Brooklyn, New York 11209

718-238-9555

Counsel for Plaintiff:

Joaquin J. Lopez, Esq.

BAKER, SANDERS, BARSHAY, GROSSMAN, FASS, MUHLSTOCK & NEUWIRTH

150 Herricks Road

Mineola, NY 11501

516-741-4799