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

Nassau Dist Ct

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