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June 30, 2008

Craigg Total Health Family Chiropractic Care PC v QBE Ins. Corp. (2008 NY Slip Op51398(U))

https://www.beynensonlaw.com/case-law/craigg-total-health-family-chiropractic-care-pc-v-qbe-ins-corp-2008-ny-slip-op51398u/

Court
District Court of Nassau County
Judge
Bruno, J.
Decided
June 30, 2008
Citation
2008 NY Slip Op 51398(U) · 20 Misc 3d 1118(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Later history
Affirmed by Craigg Total Health Family Chiropractic Care, P.C. v QBE Ins. Corp. (2009 NY Slip Op 51400(U))
Issues
Provider's prima facie case
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
Craigg Total Health Family Chiropractic Care PC v QBE Ins. Corp., 20 Misc 3d 1118(A), 2008 NY Slip Op 51398(U) (Dist Ct, Nassau County 2008)

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 providers failed to establish entitlement to summary judgment because their biller's affidavit did not supply a business-record foundation. The District Court, Nassau County, denied the providers' motion for payment of assigned no-fault claims. Under CPLR 4518 (a), the affidavit did not identify the biller's actual employer or adequately explain recordkeeping practices, contemporaneous preparation, or regular creation of the attached documents. It also failed to show that ordinary office procedures were followed for the services at issue. Statements that documents were personally mailed and the insurer's denials acknowledging receipt did not cure the foundational deficiencies. The providers therefore failed to establish their prima facie case.

Reported in New York Official Reports at Craigg Total Health Family Chiropractic Care PC v QBE Ins. Corp. (2008 NY Slip Op 51398(U))

[*1]
Craigg Total Health Family Chiropractic Care PC v QBE Ins. Corp.
2008 NY Slip Op 51398(U) [20 Misc 3d 1118(A)]
Decided on June 30, 2008
Nassau Dist Ct
Bruno, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2008

Nassau Dist Ct



Craigg Total Health Family Chiropractic Care PC Gentle Care Acupuncture PC PLC Medical PC a/a/o Robert Aronov, Plaintiff,

against

QBE Insurance Corporation, Defendants.

CIV 033/2008

cc:Amos Weinberg, Esq.

49 Somerset Drive South

Great Neck, New York 11020-1821

Jaffe & Koumourdas LLP

40 Wall Street, 12th Floor

New York, New York 10005

Robert A. Bruno, J.

Plaintiffs move for an order, pursuant to CPLR 3212, granting summary judgment in their favor in this action to recover fees for medical treatments provided under the no-fault law to their assignor Robert Aronov. Defendant opposes this motion and Plaintiffs have served a reply.

Plaintiffs’ assignor was allegedly involved in a motor vehicle accident on March 1, 2007. Plaintiffs submitted claims to Defendant, for which the complaint states $8,150.24 has not been paid. All claims, except for one for an examination on August 6, 2007 for which the Plaintiffs maintain no denial was ever received, were denied on the basis of the assignor’s failure to appear at an independent medical examination. Plaintiffs further contend that $4,301.45 of the claims were late.

On a motion for summary judgment, the court must determine if a triable issue of fact exists (Figueroa v. Gallagher, 20 AD3d 385 [2d Dept 2005]). A motion for summary judgment “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Baker v. DJ Stapleton, Inc., 43 AD3d 839 [2d Dept 2007] citing Scott v. Long Island Power Authority, 294 AD2d 348 [2d Dept 2002]). To establish a prima facie case for summary judgment in a no-fault action, Plaintiff must show that the claim forms were timely and properly submitted and that Defendant has either failed to pay or failed to properly deny the claim within the statutory time frame (11 NYCRR §65-3.8[c]; Westchester Medical Center v. AIG, Inc., 36 AD3d 900 [2d Dept 2007]).

Plaintiffs claim that they have established their prima facie case for summary judgment by showing that the claim forms were timely and properly submitted and that Defendant has either failed to pay or failed to properly deny the claim within the statutory time frame (11 NYCRR §65-3.8[c]; Westchester Medical Center v. AIG, Inc., 36 AD3d 900 [2d Dept 2007]).

However, in order to lay a proper evidentiary foundation for the forms, bills and related documents necessary to establish Plaintiffs prima facie case, a supporting affidavit must establish [*2]that the tendered documents are a part of Plaintiff’s business records (CPLR 4518[a]; North Acupuncture, PC v. State Farm Ins. Co., 14 Misc 3d 130[A] [App Term, 2nd and 11th Jud Dists 2006]). Pursuant to CPLR 4518, to overcome the hearsay objection to a business records, four fundamental elements must be satisfied: (1) the record must be one which is made in the regular course of the business; (2) it must be the regular course of business to make such records; (3) the record must have been made at the time of the act or occurrence recorded or within a reasonable time thereafter; and (4) the person who made the record must have had actual knowledge of the event, records or must have received his or her information from someone within the business who had actual knowledge and was under a “business duty” to report the event to the maker of record (see generally Dan Medical P.C. v. New York Central mutual Fire Ins. Co., 14 Misc 3d 44 [App Term, 2nd and 11th Jud Dists 2006] citing William Conover, Inc. v. Waldorf, 251 AD2d 727 [3rd Dept 1998]).

In support of their motion, Plaintiffs have submitted the affidavit of Janet Safir, the medical biller and billing manager for each of the three plaintiff providers.

The Court finds that the affidavit of Janet Safir, sworn to on November 21, 2007, fails to satisfy the business record exception to the hearsay rule, although Ms. Safir states that she personally mailed various documents to Defendant in the ordinary course of business. The affidavit on its face fails to lay any foundation for any of the documents attached to Plaintiffs’ motion. It fails to provide any specific information regarding to who is her actual employer. Although Plaintiffs have offered defendant’s denials as acknowledgment of receipt of the bills provided, Plaintiffs have failed to lay a sufficient evidentiary foundation in satisfaction of CPLR 4518. Despite Ms. Safir’s purported personal knowledge of the manner in which Plaintiffs’ records are ordinarily kept, her affidavit fails to demonstrate what the manner consisted of and whether the records were recorded at the time the services were provided to its assignor or within a reasonable time thereafter, where the document was created, if it was created in the ordinary course of business and whether it is the regular course of the business to prepare said documents. Further, Ms. Safir fails to demonstrate that the procedures ordinarily implemented by Plaintiffs’ offices were the procedures implemented on the date the services were rendered to Plaintiffs’ assignor.

Since the affidavit of Plaintiffs’ biller was insufficient to lay a foundation for the admission, as business records, of the documents annexed to Plaintiff’s moving papers, Plaintiffs have failed to establish a prima facie showing of their entitlement to summary judgment. Accordingly, Plaintiff’s motion is denied.

This constitutes the decision and order of the Court.

So Ordered:

District Court Judge

Dated: JUNE 30, 2008

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 providers failed their prima facie case because the biller's affidavit did not satisfy CPLR 4518, failing to describe record-keeping practices or her actual employer, and the insurer's denials did not cure the missing foundation.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 81
  • Appellate TermApp Term 843
  • Trial courtsTrial 139
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 16 decisions (13 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 15 decisions (9 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)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 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

  • Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.

Cited by

A label shows how the later decision treated this one.

  • Craigg Total Health Family Chiropractic Care, P.C. v QBE Ins. Corp. (2009 NY Slip Op 51400(U)) AffirmedThe providers failed to establish a prima facie case because their billing manager's affidavit did not authenticate the supporting records.

Similar decisions

  • First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co. (2005 NY Slip Op 51815(U))The provider failed to establish its prima facie case because its employee's affidavit did not lay a business-record foundation.
  • Maximum Physical Therapy, P.C. v Allstate Ins. Co. (2005 NY Slip Op 51215(U))The provider failed to establish its prima facie case because its supporting affidavit lacked specific facts and a basis for personal knowledge.
  • A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 51261(U))The providers failed to establish a prima facie case because their billing manager's affidavit did not establish admissible business records.
  • A.B. Med. Servs. PLLC v Farm Family Cas. Ins. Co. (2004 NY Slip Op 24346)A denial's timeliness is measured by its mailing date, not the date printed on the denial form.
  • Boai Zhong Yi Acupuncture Servs. PC v General Assur. Ins Co. (2005 NY Slip Op 50329(U))The provider obtained summary judgment because two denials were late and the third relied on an unavailable IME nonappearance defense.
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