November 12, 2013

Alev Med. Supply, Inc. v Geico Gen. Ins. Co. (2013 NY Slip Op 51915(U))

Headnote

The main issue in this case was whether the defendant had failed to establish its prima facie case in a no-fault benefits action by a provider. The court considered the fact that at the nonjury trial, the plaintiff presented a witness whose knowledge of the business practices and procedures of the provider was deemed sufficient to lay a foundation for the claim forms to be admitted into evidence as business records. The Civil Court had erroneously directed judgment in favor of the defendant before the plaintiff's counsel had the opportunity to move the claim forms into evidence or to elicit testimony regarding the nonpayment of the claims. The holding of the court was that the judgment was reversed and the matter was remitted to the Civil Court for a new trial.

Reported in New York Official Reports at Alev Med. Supply, Inc. v Geico Gen. Ins. Co. (2013 NY Slip Op 51915(U))

Alev Med. Supply, Inc. v Geico Gen. Ins. Co. (2013 NY Slip Op 51915(U)) [*1]

Alev Med. Supply, Inc. v Geico Gen. Ins. Co.

2013 NY Slip Op 51915(U) [41 Misc 3d 138(A)]

Decided on November 12, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Alev Medical Supply, Inc. as Assignee of RUSSELL IRBY, Appellant, —
against
Geico General Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 10, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, jointly tried with seven other actions, plaintiff’s counsel marked several exhibits for identification. However, before he had the opportunity to move those exhibits into evidence, the Civil Court directed judgment in favor of defendant and dismissed plaintiff’s complaint, finding that plaintiff had failed to establish its prima facie case.

At the nonjury trial, plaintiff presented a witness whose personal knowledge of plaintiff’s business practices and procedures was sufficient to lay a foundation for plaintiff’s claim forms to be admitted into evidence as business records and to establish the nonpayment of the claims (CPLR 4518; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also Gagen v Kipany Prods., Ltd., 27 AD3d 1042 [2006]; Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882 [2005]). These claim forms would have constituted prima facie evidence of the fact and the amount of the loss sustained (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]). Since the Civil Court erroneously directed judgment in favor of defendant before plaintiff’s counsel had the opportunity to move the claim forms into evidence or to elicit testimony regarding the nonpayment of the claims, the action should be remitted to the Civil Court for a new trial.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 12, 2013