May 13, 2010

Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford (2010 NY Slip Op 50889(U))

https://www.beynensonlaw.com/case-law/balance-chiropractic-p-c-v-property-cas-ins-co-of-hartford-2010-ny-slip-op50889u/

Court: Appellate Term, Second Department
Decided: May 13, 2010
Citation: 2010 NY Slip Op 50889(U) · 27 Misc 3d 138(A)
Posture: Default or vacatur
Outcome: Insurer prevailed
Later treatment: Followed in 4 later decisions (see Cited by)
Issues: Defaults and vacatur Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138(A), 2010 NY Slip Op 50889(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 default judgment motion lacked personal-knowledge proof of its claim and an admissible business-records foundation. Although the insurer did not oppose the motion, CPLR 3215 (f) required an affidavit or verified complaint from a party with personal knowledge of the claim's factual basis. Counsel's verification did not demonstrate that knowledge, and the third-party billing company's president did not establish admissibility of the attached documents under CPLR 4518. The provider also was not entitled to an alternative finding that it had established its prima facie case for all purposes. The Appellate Term, Second Department, modified the denial to permit renewal on proper papers and otherwise affirmed.

Reported in New York Official Reports at Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford (2010 NY Slip Op 50889(U))

[*1]

Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford

2010 NY Slip Op 50889(U) [27 Misc 3d 138(A)]

Decided on May 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-995 K C.

Balance Chiropractic, P.C. a/a/o CIRILO ACOSTA and DIONICIO MUNOZ, Appellant,
against
Property and Casualty Ins. Co. of Hartford, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered April 23, 2009. The order denied plaintiff’s motion for leave to enter a default judgment.

ORDERED that the order is modified by providing that plaintiff’s motion is denied with leave to renew upon proper papers; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for leave to enter a default judgment based upon defendant’s failure to appear or answer the complaint or, in the alternative, for an order finding for all purposes in the action that plaintiff had established a prima facie case. The motion was unopposed. The Civil Court denied the motion, and this appeal by plaintiff ensued.

In support of its motion, plaintiff proffered neither an affidavit nor a verified complaint by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted a complaint verified by counsel, who did not demonstrate personal knowledge of the facts, and an affidavit of the president of a third-party billing company, which affidavit did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers [*2]Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Andrew Carothers, M.D., P.C. v Geico Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Since plaintiff’s motion papers did not demonstrate a prima facie entitlement to judgment as a matter of law, the Civil Court properly denied the motion (see All Mental Care Medicine, P.C. v Allstate Ins. Co., 15 Misc 3d 129[A], 2007 NY Slip Op 50612[U] [App Term, 2d & 11th Jud Dists 2007]). Furthermore, plaintiff is not entitled to the alternative relief it sought, a finding for all purposes in the action that it had established its prima facie case (see e.g. B.Y., M.D., P.C. v Government Empls. Ins. Co., 26 Misc 3d 95 [App Term, 9th & 10th Jud Dists 2010]). However, in the circumstances presented, we modify the order to provide that plaintiff’s motion is denied with leave to renew upon proper papers.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 13, 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's unopposed default judgment motion showed no prima facie entitlement because counsel lacked personal knowledge and the billing company president's affidavit did not establish the annexed documents' admissibility 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 1,063 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. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (2009 NY Slip Op 29155) FollowedThe provider's billing witness failed to lay a business records foundation, leaving the provider without a prima facie case at trial.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
All Mental Care Medicine, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50612(U)) FollowedThe provider's renewed default-judgment motion failed for lack of a business-records foundation and proof that its claims were submitted.
B.Y., M.D., P.C. v Government Empl. Ins. Co. (2010 NY Slip Op 20026)A provider cannot obtain partial summary judgment merely establishing its prima facie case without disposing of any part of a cause of action.

Cited by

A label shows how the later decision treated this one.

Eagle Surgical Supply, Inc. v QBE Ins. Co. (2011 NY Slip Op 51455(U)) FollowedThe provider's default-motion papers failed to establish entitlement to an unconditional judgment under CPLR 3215 (f).
Eagle Surgical Supply, Inc. v QBE Ins. Co. (2011 NY Slip Op 51456(U)) FollowedThe provider failed to supply the factual proof required for unconditional entry of a default judgment under CPLR 3215 (f).
Ventrudo v GEICO Ins. Co. (2012 NY Slip Op 52180(U)) FollowedThe provider failed to establish entitlement to a default judgment, and the insurer failed to justify acceptance of its late answer.
Citywide Med. Servs., P.C. v Metropolitan Cas. Ins. Co. (2018 NY Slip Op 50119(U)) FollowedThe provider failed to excuse its seven-year delay in seeking a default judgment or show a meritorious claim.
Neurology Group v New York City Tr. Auth. (2012 NY Slip Op 50563(U))The provider's action was dismissed as abandoned because it failed to justify a delay exceeding 12 years or show meritorious claims.

Similar decisions

Art of Healing Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50766(U))The insurer failed to obtain IME nonappearance dismissal, and the provider failed to establish its prima facie case for the disputed claim.
BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51270(U))The provider and insurer failed to establish entitlement to summary judgment on the first through fifth causes of action.
Bedford Park Med. Practice, P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50494(U))A provider cannot cure deficient summary judgment proof by first supplying admissible evidence in reply papers.
Active Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50200(U))An order granting entry of a default judgment without declaring the parties' rights has no preclusive effect in a no-fault action.
A.B. Med. Servs. PLLC v Specialty Natl. Ins. Co. (2006 NY Slip Op 50810(U))The providers failed to establish submission of their claims, and the insurer showed grounds to open its default.