August 4, 2011

Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 51528(U))

https://www.beynensonlaw.com/case-law/five-boro-psychological-servs-p-c-v-progressive-northeastern-ins-co-2011-nyslip-op-51528u/

Court: Appellate Term, Second Department
Decided: August 4, 2011
Citation: 2011 NY Slip Op 51528(U) · 32 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Trial and evidence

Cite as

Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 32 Misc 3d 136(A), 2011 NY Slip Op 51528(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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.

A denial form offered to show that a claim was denied, rather than to prove its contents, needs no CPLR 4518 business-record foundation. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint in the insurer's favor. The insurer did not attach the bill, but the complaint identified the sole bill under CPLR 3013 and was included with the motion as CPLR 3212 (b) required. There was therefore no uncertainty about the claim at issue. The insurer used the denial form to establish that it was sent and the claim denied, rather than to prove service dates, services, or charges. Because that use was not hearsay, a business-record foundation was unnecessary. The provider's remaining contentions lacked merit.

Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 51528(U))

[*1]

Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co.

2011 NY Slip Op 51528(U) [32 Misc 3d 136(A)]

Decided on August 4, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-2456 K C.

Five Boro Psychological Services, P.C. as Assignee of GEORGETTE BECKVERMIT, Appellant,
against
Progressive Northeastern Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered September 21, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint.

Plaintiff argues on appeal that, because defendant failed to attach a copy of the bill at issue in this case to its motion papers, the Civil Court could not have been able to identify the bill at issue and, thus, defendant’s motion should have been denied. This contention is without merit. The complaint in this matter identified the sole bill at issue (see CPLR 3013), and defendant attached the complaint to its motion papers as required by CPLR 3212 (b). Accordingly, there could not have been any question as to the identity of the bill which is the subject of this action.

Next, plaintiff correctly argues that defendant could not rely on defendant’s denial of claim forms “for the purposes of asserting the information contained within them,” such as “the dates of services, the services performed, the fees charged per service provided, etc.” However, defendant was not relying on them for that purpose. It is plaintiff’s burden, not defendant’s, to prove the elements of plaintiff’s cause of action. Defendant submitted the denial of claim form to show that it was sent and that the claim was therefore denied (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Quality Health Prods., Inc. v NY Cent. Mut. Fire [*2]Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since defendant did not submit the denial of claim form for a hearsay purpose, defendant was not required to lay a CPLR 4518 foundation for its admissibility (see Five Boro Psychological Servs., P.C., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U]; Quality Health Prods., Inc., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U]).

In view of the foregoing, and as plaintiff’s remaining contentions similarly lack merit (see Alfa Med. Supplies v Progressive Northeastern Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51733[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: August 04, 2011

Cited in this decision

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

Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2010 NY Slip Op 50991(U)) FollowedDenial forms offered to show that claims were denied, rather than to prove their contents, need not qualify as business records.
Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50990(U)) FollowedDenial forms and a cancellation notice offered for a nonhearsay purpose need not qualify as business records under CPLR 4518.
Alfa Med. Supplies v Progressive Northeastern Ins. Co. (2010 NY Slip Op 51733(U)) FollowedThe insurer established full payment of one claim and an unrebutted medical necessity defense to the remaining claim.

Cited by

A label shows how the later decision treated this one.

BLR Chiropractic, P.C. v GEICO (2012 NY Slip Op 51647(U)) FollowedAn insurer moving for summary judgment need not attach the provider's bills to its motion.
Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co. (2014 NY Slip Op 50464(U)) FollowedThe insurer failed to establish a timely denial based on EUO nonappearance because it did not prove when it received the claims.
Royal Med. Supply, Inc. v Progressive Northeastern Ins. Co. (2012 NY Slip Op 51727(U))The provider did not dispute sufficient proof of the assignor's failure to attend two EUOs timely scheduled after receipt of the claims.

Similar decisions

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51447(U))The insurer established timely denials and an unrebutted lack of medical necessity through affirmed peer review reports.
Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51858(U))The insurer's unrebutted sworn peer review established lack of medical necessity and warranted dismissal of the provider's claim.
Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 51119(U))The insurer established that one claim was premature for unanswered verification and two others lacked medical necessity.
Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50063(U))The insurer's psychologist's peer review was inadmissible, and the provider failed to establish entitlement to summary judgment.
PDG Psychological, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50436(U))The provider's trial witnesses failed to establish a business-record foundation for its bill under CPLR 4518.