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May 22, 2009

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

https://www.beynensonlaw.com/case-law/bath-med-supply-inc-v-utica-mut-ins-co-2009-ny-slip-op-51030u/

Court
Appellate Term, Second Department
Decided
May 22, 2009
Citation
2009 NY Slip Op 51030(U) · 23 Misc 3d 141(A)
Posture
Trial
Outcome
Insurer prevailed
Later treatment
Distinguished in 1 and followed in 1 later decisions (see Cited by)
Issues
Trial and evidence Provider's prima facie case
Legal questions
Claimant's prima facie case at trial (see the maps)
Cite as
Bath Med. Supply, Inc. v Utica Mut. Ins. Co., 23 Misc 3d 141(A), 2009 NY Slip Op 51030(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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 failed to prove its trial prima facie case because it did not establish admissibility of its claim forms as business records. At the nonjury trial, objections were sustained to the claim forms, assignment, and denials, and then to the provider's notice to admit and the insurer's response. The provider contended that those materials and an affidavit opposing its withdrawn summary judgment motion established its case. Following Bajaj v General Assur. Co., the provider still bore the burden of introducing admissible claim forms, including through a witness laying a business-record foundation, which it failed to do. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint upon the insurer's CPLR 4401 motion.

Reported in New York Official Reports at 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This opinion is uncorrected and will not be published in the printed Official Reports.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

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 at trial

Open the full map

What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?

This decision: Insufficient: claim forms not admitted as business records / insurer's admissions held not to prove the claim

Affirmed a directed verdict dismissing the complaint because at trial the provider called no witness to lay a business-records foundation for its claim forms, so it did not establish a prima facie case.

  • Appellate DivisionApp Div 3
  • Appellate TermApp Term 64
  • Trial courtsTrial 36
2008, Appellate Division: 1 decision (1 Other element missing)2006, Appellate Division: 1 decision (1 Other element missing)2010, Appellate Division: 1 decision (1 Business-record foundation lacking)2019, Appellate Term: 12 decisions (1 Proof sufficient, 11 Other element missing)2016, Appellate Term: 6 decisions (2 Proof sufficient, 4 Other element missing)2015, Appellate Term: 3 decisions (2 Proof sufficient, 1 Other element missing)2014, Appellate Term: 3 decisions (2 Proof sufficient, 1 Other element missing)2013, Appellate Term: 8 decisions (4 Proof sufficient, 1 Mailing/receipt not shown, 1 Business-record foundation lacking, 2 Other element missing)2012, Appellate Term: 1 decision (1 Mailing/receipt not shown)2011, Appellate Term: 2 decisions (1 Overdue not shown, 1 Other element missing)2010, Appellate Term: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Appellate Term: 11 decisions (1 Proof sufficient, 1 Overdue not shown, 9 Business-record foundation lacking)2008, Appellate Term: 1 decision (1 Business-record foundation lacking)2006, Appellate Term: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2007, Appellate Term: 1 decision (1 Business-record foundation lacking)2017, Appellate Term: 3 decisions (3 Other element missing)2018, Appellate Term: 3 decisions (3 Other element missing)2020, Appellate Term: 2 decisions (1 Proof sufficient, 1 Other element missing)2022, Appellate Term: 1 decision (1 Other element missing)2025, Appellate Term: 1 decision (1 Other element missing)2017, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 3 decisions (2 Proof sufficient, 1 Other element missing)2013, Trial courts: 2 decisions (1 Business-record foundation lacking, 1 Other element missing)2011, Trial courts: 1 decision (1 Mailing/receipt not shown)2010, Trial courts: 4 decisions (4 Proof sufficient)2008, Trial courts: 5 decisions (2 Proof sufficient, 1 Overdue not shown, 2 Business-record foundation lacking)2007, Trial courts: 2 decisions (1 Proof sufficient, 1 Business-record foundation lacking)2006, Trial courts: 9 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 1 Business-record foundation lacking, 1 Other element missing)2004, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2005, Trial courts: 1 decision (1 Proof sufficient)2009, Trial courts: 1 decision (1 Proof sufficient)2021, Trial courts: 1 decision (1 Proof sufficient)2022, Trial courts: 1 decision (1 Other element missing)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 103 decisions on this question in the Second Department courts and the Court of Appeals, 21 (this one included) are in the same category.

Cited in this decision

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

  • Bajaj v General Assur. (2007 NY Slip Op 27487) FollowedAn insurer's admission that a denial form is genuine does not establish the provider's claim form as an admissible business record.
  • 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.

Cited by

A label shows how the later decision treated this one.

  • Alleviation Med. Servs., PC v Hertz Co. (2015 NY Slip Op 25285) DistinguishedA provider may establish claim submission and receipt through admissions in denials annexed to the defendant's interrogatory response.
  • Allstate Social Work & Psychological Servs., PLLC v GEICO Gen. Ins. Co. (2011 NY Slip Op 21234) FollowedDenial-of-claim forms offered at trial to prove billing require a business-record foundation.
  • Victory Med. Diagnostics, P.C. v Nationwide Prop. & Cas. Ins. Co. (2012 NY Slip Op 22149)A provider's reasoned objection to a verification request preserves its propriety for determination by the trier of fact.
  • Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 22242)The provider proved mailing of requested verification, and the insurer's conclusory denial of receipt raised no triable issue.

Similar decisions

  • Bath Med. Supply, Inc. v Allstate Ins. Co. (2007 NY Slip Op 51602(U))The provider failed to establish its prima facie case because its officer's affidavit did not support admission of the attached business records.
  • Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50347(U))The insurer's unrebutted peer review proof established that the equipment supplied by the provider lacked medical necessity.
  • Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U))The insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal.
  • Psychmetrics Med., P.C. v Travelers Ins. Co. (2008 NY Slip Op 52466(U))The provider failed to establish its prima facie case at trial because it called no witness to authenticate its claim form as a business record.
  • Bath Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 52316(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to justify delaying summary judgment for discovery.
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