January 12, 2007

Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U))

https://www.beynensonlaw.com/case-law/bath-med-supply-inc-v-deerbrook-ins-co-2007-ny-slip-op-50179u/

Court: Appellate Term, Second Department
Decided: January 12, 2007
Citation: 2007 NY Slip Op 50179(U) · 14 Misc 3d 135(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 2 and followed in 31 later decisions (see Cited by)
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135(A), 2007 NY Slip Op 50179(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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 insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal. The provider sought summary judgment on assigned no-fault claims, and the Civil Court denied the motion for inadequate proof of claim mailing. The corporate officer's affidavit also failed to establish personal knowledge of the provider's practices and procedures sufficient to admit the annexed documents, leaving claim submission unproved. The Appellate Term, Second Department, considered the insurer's new argument because Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. had resolved an appeal on a prima facie deficiency first raised on appeal despite objection. It affirmed denial of the provider's motion.

Reported in New York Official Reports at Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U))

[*1]

Bath Med. Supply, Inc. v Deerbrook Ins. Co.

2007 NY Slip Op 50179(U) [14 Misc 3d 135(A)]

Decided on January 12, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 12, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-1958 K C.

Bath Medical Supply, Inc., a/a/o Astrid Yolima Villa, Appellant,
against
Deerbrook Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered October 20, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below denied the motion on the ground that plaintiff’s moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its motion for summary judgment.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case.

The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing that it submitted its claim forms to defendant thereby entitling it to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). We note that a review of the record on appeal in the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]), as well as of the briefs submitted to the Appellate Division on said appeal, reveals that the issue that movant failed to establish a prima facie case on the motion for [*2]summary judgment was raised for the first time on appeal. Although specific objection was raised by the opposition that said issue may not be considered by the Appellate Division, the court
nevertheless determined the appeal based upon said issue. In view of the foregoing, we also consider defendant’s argument, although raised for the first time on appeal, and hold that plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: January 12, 2007

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 to show it submitted its claim forms because its officer's affidavit did not establish personal knowledge of the provider's practices to lay a business-records foundation for the annexed documents.

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

A label shows how this decision treated the case it cites.

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.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.

Cited by (47)

A label shows how the later decision treated this one.

Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52046(U)) Contrasted (cf., but see)The provider recovered on the first claim, but the second was premature because requested assignment verification remained unanswered.
Nyack Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52184(U)) Contrasted (cf., but see)An insurer must accept a completed hospital facility form in place of an application for motor vehicle no-fault benefits.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2007 NY Slip Op 51161(U)) FollowedThe providers' billing manager failed to lay a business-records foundation for their partial summary judgment motion.
Liberty Orthopedics, PLLC v Mvaic (2008 NY Slip Op 51533(U)) FollowedNeither the provider's business-records proof nor MVAIC's challenge to the assignor's qualified-person status warranted summary judgment.
Triboro Chiropractic & Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51175(U)) FollowedThe provider lacked admissible billing proof, while the insurer failed to establish its IME nonappearance and fee-schedule defenses.
Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50347(U)) FollowedThe insurer's unrebutted peer review proof established that the equipment supplied by the provider lacked medical necessity.
Dan Med., P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 50602(U)) FollowedThe provider's summary judgment showing failed for lack of a business-records foundation, and its discovery appeal concerned a default order.
Fortune Med., P.C. v New York Cent. Mut. Fire Ins. (2008 NY Slip Op 50522(U)) FollowedThe provider failed to establish entitlement to summary judgment because its officer's affidavit did not authenticate the supporting records.
Psychology YM, P.C. v Nationwide Mut. Ins. Co. (2009 NY Slip Op 51634(U)) FollowedThe provider failed to establish entitlement to summary judgment because its billing company's affidavit did not comply with CPLR 4518.

Show all 47 citing decisions

Similar decisions

A.M. Med. Servs., P.C. v Deerbrook Ins. Co. (2007 NY Slip Op 51610(U))The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-record foundation.
Bath Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 51030(U))The provider failed to prove its trial prima facie case because it did not establish admissibility of its claim forms as business records.
Bath Med. Supply, Inc. v Allstate Indem. Co. (2006 NY Slip Op 52273(U))The insurer's mailing affidavit was inadmissible under CPLR 2309 (c), precluding its medical-necessity defense for lack of timely denial proof.
Fair Price Med. Supply Corp. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50168(U))The provider's corporate officer affidavit failed to lay the business-records foundation needed to establish a prima facie case.
Bath Med. Supply, Inc. v Country Wide Ins. Co. (2009 NY Slip Op 51145(U))The insurer established verification tolling and timely denials, and its peer review raised a factual issue concerning medical necessity.