October 1, 2010

Carothers v GEICO Indem. Co. (2010 NY Slip Op 51718(U))

Headnote

After a nonjury trial, a provider recovered $4,462.12 in assigned first-party no-fault benefits from the insurer. At trial the provider tried to lay a business-records foundation for its NF-3 verification of treatment forms through the billing manager of an outside company hired to submit its claims. The insurer objected that the witness was not competent to lay that foundation. Relying on prior Appellate Term decisions involving the same provider, the court concluded that the documents should not have been admitted. Without them the plaintiff failed to establish a prima facie case. The judgment was reversed and the complaint dismissed.

Reported in New York Official Reports at Carothers v GEICO Indem. Co. (2010 NY Slip Op 51718(U))

[*1]
Carothers v GEICO Indem. Co.
2010 NY Slip Op 51718(U) [29 Misc 3d 126(A)]
Decided on October 1, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2010
SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1843 K C.

Andrew Carothers, M.D. as Assignee of Robert Kitchen, Karen Bascom and Minnie McKenzie, Respondent,

against

GEICO Indemnity Company, Appellant.


Appeal from a decision of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), dated May 31, 2007, deemed from a judgment of the same court entered February 10, 2009 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,462.12.


ORDERED that the judgment is reversed without costs and the complaint is dismissed.

At the nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, plaintiff proffered a series of documents, including NF-3 verification of treatment forms, and sought to lay a foundation for their admission under CPLR 4518 by means of the testimony of its sole witness, the billing manager for Advanced Health Care Solutions, a company that was hired by plaintiff to handle the submission of plaintiff’s no-fault claim forms. Defendant objected to the documents’ admission, arguing that the billing manager was not competent to lay a foundation therefor. The Civil Court admitted the documents into evidence and thereafter found in favor of plaintiff. Defendant appealed from the court’s decision. A judgment was subsequently entered, from which we deem the appeal to be taken (see CPLR 5520 [c]).

For the reasons stated in Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]) and Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (26 Misc 3d 126[A], 2009 NY Slip Op 52596[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), we conclude that the documents should not have been admitted into evidence. Since, absent their admission, plaintiff did not set forth a prima facie case, the judgment is reversed and the complaint is dismissed. [*2]

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010