July 7, 2011

Allstate Social Work & Psychological Servs., PLLC v GEICO Gen. Ins. Co. (2011 NY Slip Op 21234)

Headnote

The case involved three actions for no-fault benefits, with the main issue being whether the denial of claim forms from the defendant could be admitted as party admissions for the limited purpose of establishing that the plaintiff mailed its bills to the defendant. The court considered the testimony of the plaintiff's witness, Vladmir Grinsberg, who could not set forth how the bills were mailed and could not provide any evidence to authenticate the denial of claim forms. The court ruled that the denial of claim forms should only be admitted into evidence upon the laying of a business record foundation, as opposed to documents annexed to a summary judgment motion. The holding of the case was that the defendant's motions for directed verdict in each of the three actions were granted because the plaintiff failed to shoulder its prima facie burden.

Reported in New York Official Reports at Allstate Social Work & Psychological Servs., PLLC v GEICO Gen. Ins. Co. (2011 NY Slip Op 21234)

Allstate Social Work & Psychological Servs., PLLC v GEICO Gen. Ins. Co.

2011 NY Slip Op 21234 [32 Misc 3d 721]

July 7, 2011

Edwards, J.

Civil Court of the City Of New York, Kings County

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

As corrected through Wednesday, September 21, 2011

[*1]

Allstate Social Work and Psychological Services, PLLC, as Assignee of Lee Howell and Others, Plaintiff,
v
GEICO General Insurance Company, Defendant.

Allstate Social Work and Psychological Services, PLLC, as Assignee of Latarsha Brown and Others, Plaintiff, v GEICO General Insurance Company, Defendant.

Allstate Social Work and Psychological Services, PLLC, as Assignee of Amedeo Rodriguez and Others, Plaintiff, v GEICO General Insurance Company, Defendant.

Civil Court of the City of New York, Kings County, July 7, 2011

APPEARANCES OF COUNSEL

Law Office of Teresa M. Spina, Woodbury (Dominick Dale of counsel), for defendant. Gary Tsirelman, P.C., Brooklyn (Wesley Mead of counsel), for plaintiff.

{**32 Misc 3d at 716} OPINION OF THE COURT

Genine D. Edwards, J.

In the instant actions for no-fault benefits, bench trials were held on April 13, 2011 and April 14, 2011. After establishing how the bills were created and given to Israel & Israel for [*2]mailing, plaintiff’s witness, Vladmir Grinsberg, could not set forth how the bills were mailed. Mr. Grinsberg instead offered that the denial of claims indicated defendant received the bills. Plaintiff’s counsel contended that the defendant’s denial of claim forms were admissible as party admissions for the limited purpose of proving the bills were mailed and received. Defendant objected and argued that plaintiff has to lay a foundation for the admission of the denial of claim forms. Hence, a directed verdict should be rendered in defendant’s favor in all three actions.

This court requested post-trial memoranda regarding the admissibility of the defendant’s denial of claim forms as party admissions for the limited purpose of establishing that plaintiff mailed its bills to the defendant.

After due deliberation of the evidence adduced at trial, as opposed to documents annexed to a summary judgment motion, this court adheres to the Appellate Term’s ruling that denial of claim forms shall be admitted into evidence only upon the laying of a business record foundation. (Bath Med. Supply, Inc. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51030[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d Dept 2007].) Besides testifying that he received the denial of claim forms, Mr. Grinsberg failed to proffer any evidence to authenticate the denial of claim forms.

Accordingly, defendant’s motions for directed verdict in each of the three actions are granted because plaintiff failed to shoulder its prima facie burden.