May 22, 2009

Bath Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 51030(U))

Headnote

The court considered the dispute between Bath Medical Supply, Inc. and Utica Mutual Insurance Company regarding the recovery of assigned first-party no-fault benefits. The main issue decided was whether the evidence presented by Bath Medical Supply, Inc. was sufficient to establish a prima facie case in their favor. The court held that Bath Medical Supply, Inc. failed to establish the admissibility of the claim forms as business records, and therefore, did not establish a prima facie case. As a result, the court affirmed the judgment dismissing Bath Medical Supply, Inc.'s complaint against Utica Mutual Insurance Company.

Reported in New York Official Reports at Bath Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 51030(U))

Bath Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 51030(U)) [*1]

Bath Med. Supply, Inc. v Utica Mut. Ins. Co.

2009 NY Slip Op 51030(U) [23 Misc 3d 141(A)]

Decided on May 22, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-836 K C.

Bath Medical Supply, Inc. a/a/o Edwin Manzzo, Appellant,
against
Utica Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered October 9, 2007, deemed from a judgment of the same court entered January 3, 2008 (CPLR 5520 [c]). The judgment, after a nonjury trial, entered pursuant to the October 9, 2007 order granting defendant’s motion pursuant to CPLR 4401 to dismiss plaintiff’s complaint for failure to prove a prima facie case, dismissed the complaint.

Judgment affirmed without costs.

At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff sought to admit into evidence the claim forms at issue and the assignment of benefits, as well as the denial of claim forms issued by defendant. After defendant’s objection to the admission of said documents was sustained, plaintiff orally moved for the admission into evidence of its notice to admit and defendant’s response thereto, contending that they, and defendant’s affidavit in opposition to plaintiff’s prior motion for summary judgment, which motion was withdrawn, were sufficient to establish plaintiff’s prima facie case. The court similarly sustained defendant’s objection to the admission of the foregoing documents. After plaintiff rested, the court granted defendant’s motion pursuant to CPLR 4401 for a directed verdict dismissing the complaint for failure to prove a prima facie case. The instant appeal by plaintiff ensued. A judgment was subsequently entered dismissing the complaint.

At trial, “it remained plaintiff’s burden to proffer evidence in admissible form, i.e., by [*2]introducing into evidence the claim form[s] in question by, inter alia, calling a witness to lay a foundation for the admissibility of the claim form[s] as . . . business record[s], which plaintiff failed to do. Accordingly, in light of plaintiff’s failure to establish the admissibility of its claim form[s] as . . . business record[s], plaintiff did not establish a prima facie case and defendant was entitled to judgment dismissing the complaint” (Bajaj v General Assur. Co., 18 Misc 3d 25, 28-29 [App Term, 2d & 11th Jud Dists 2007] [citation omitted]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]). Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 22, 2009