July 22, 2010

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co. (2010 NY Slip Op 51339(U))

https://www.beynensonlaw.com/case-law/axis-chiropractic-pllc-v-geico-gen-ins-co-2010-ny-slip-op51339u/

Court: Appellate Term, Second Department
Decided: July 22, 2010
Citation: 2010 NY Slip Op 51339(U) · 28 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co., 28 Misc 3d 133(A), 2010 NY Slip Op 51339(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 provider's billing-company affiant failed to show personal knowledge needed to establish a business-record foundation. The provider moved for summary judgment in an action for assigned no-fault benefits, relying on an affidavit from the president of its billing company. The affiant did not demonstrate personal knowledge of the provider's business practices and procedures sufficient to establish admissibility of the supporting documents under CPLR 4518. The provider therefore failed to make a prima facie showing of entitlement to judgment. The Appellate Term, Second Department, affirmed the denial of the provider's motion and expressly reached no other issue.

Reported in New York Official Reports at Axis Chiropractic, PLLC v GEICO Gen. Ins. Co. (2010 NY Slip Op 51339(U))

[*1]

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co.

2010 NY Slip Op 51339(U) [28 Misc 3d 133(A)]

Decided on July 22, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 22, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-1174 K C.

Axis Chiropractic, PLLC as assignee of Ricargo Herrera, Appellant,
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered March 13, 2009. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment, finding that “plaintiff’s affidavit was legally insufficient.” This appeal by plaintiff ensued.

Plaintiff’s motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the documents submitted in support of plaintiff’s motion were admissible pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50065[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the order is affirmed.

In light of the foregoing, we reach no other issue.

Weston, J.P., Golia and Steinhardt, JJ., concur. [*2]
Decision Date: July 22, 2010

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 provider failed its prima facie showing because the billing company president did not demonstrate personal knowledge of the provider's practices to render the documents admissible under CPLR 4518.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

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

Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co. (2010 NY Slip Op 50065(U))The provider failed to establish admissible business records through its third-party billing company's employee.
Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (2009 NY Slip Op 29155)The provider's billing witness failed to lay a business records foundation, leaving the provider without a prima facie case at trial.
Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2007 NY Slip Op 51161(U))The providers' billing manager failed to lay a business-records foundation for their partial summary judgment motion.
Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)The providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.

Similar decisions

A.B. Med., PLLC v GEICO (2013 NY Slip Op 50203(U))The provider failed to establish that the insurer's denials were untimely or without merit as a matter of law.
BLR Chiropractic, P.C. v GEICO (2012 NY Slip Op 51647(U))An insurer moving for summary judgment need not attach the provider's bills to its motion.
New York Diagnostic Med. Care, P.C. v GEICO Cas. Ins. Co. (2012 NY Slip Op 52409(U))The provider's billing affidavit failed to establish overdue claims or timely denials that were legally deficient.
Axis Chiropractic, PLLC v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50753(U))The insurer established timely mailing of IME notices and denials and the assignors' failure to appear for the scheduled IMEs. In the provider's action for assigned no-fault benefits, affidavits from the scheduling company's president established timely mailing through standard office practices and procedures.
New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for summary judgment.