February 7, 2007

Fortune Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50243(U))

https://www.beynensonlaw.com/case-law/fortune-med-p-c-v-allstate-ins-co-2007-ny-slip-op-50243u/

Court: Appellate Term, Second Department
Decided: February 7, 2007
Citation: 2007 NY Slip Op 50243(U) · 14 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 1 and followed in 23 later decisions (see Cited by)
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136(A), 2007 NY Slip Op 50243(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2007)

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.

An insurer's acknowledgment of claim receipt does not concede the admissibility of the claim forms or the facts they contain. The provider moved for summary judgment on assigned no-fault claims, but its corporate officer's affidavit did not establish personal knowledge of the billing practices and procedures needed to admit the annexed documents under CPLR 4518. The affidavit therefore lacked a proper business-records foundation. The provider argued that the insurer's denial form established its claims, but an acknowledgment of receipt established only receipt, following Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. The Appellate Term, Second Department, affirmed denial of the provider's motion.

Reported in New York Official Reports at Fortune Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50243(U))

[*1]

Fortune Med., P.C. v Allstate Ins. Co.

2007 NY Slip Op 50243(U) [14 Misc 3d 136(A)]

Decided on February 7, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 7, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2005-1665 N C.

Fortune Medical, P.C. a/a/o Marta Skrzypiec, Appellant,
against
Allstate Insurance Co., Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Randy Sue Marber, J.), entered May 10, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services provided its assignor, plaintiff moved for summary judgment. The court below denied the motion and we affirm.As the court below properly determined, plaintiff’s supporting affidavit failed to assert a proper foundation to admit plaintiff’s exhibits as business records. The affidavit, by someone identified only as plaintiff’s “corporate officer,” did
not set forth the affiant’s personal knowledge of plaintiff’s business practices and procedures for creating bills to establish the admissibility of the claims forms and of the other documents annexed to the affidavit, pursuant to the business records exception to the hearsay rule (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Indeed, such an affidavit is of no more probative value than an attorney’s affirmation (Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]).

We note that, contrary to plaintiff’s contention, even where an insurer’s denial of claim form, acknowledging receipt of claims, is properly placed before the court, it “merely establishe[s] that defendant received claim forms submitted by, or on behalf of plaintiff, but [does] not concede the admissibility of the purported claim forms or the facts set forth therein” (Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur. [*2]
Decision Date: February 7, 2007

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 provider's affidavit laid no business-records foundation for the claim forms and that the insurer's denial acknowledging receipt did not concede the forms' admissibility or the facts in them.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 1,063 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

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

Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51879(U)) FollowedThe provider's attorney affirmation failed to establish the admissibility of its claim forms or a prima facie entitlement to judgment.

Cited by (34)

A label shows how the later decision treated this one.

Freeport Med., P.C. v Utica Natl. Ins. Co. of Tex. (2008 NY Slip Op 51448(U)) Contrasted (cf., but see)The insurer's investigator failed to establish a fact or founded belief that the assignor's injuries did not arise from an insured incident.
Amaze Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 52690(U)) FollowedThe insurer's submissions supported a founded belief that the alleged injuries did not arise out of an insured incident.
D.A.V. Chiropractic, P.C. v GEICO Indem. Co. (2008 NY Slip Op 52304(U)) FollowedThe insurer's fraudulent-procurement defense failed because it showed neither preaccident cancellation nor the assignors' participation in fraud.
Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2007 NY Slip Op 50502(U)) FollowedThe provider's officer failed to establish personal knowledge sufficient to admit the motion's supporting documents as business records.
New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co. (2012 NY Slip Op 50681(U)) FollowedTimeliness under the 45-day claim-submission requirement turns on the provider's submission date, rather than the insurer's receipt date.
W.H.O. Acupuncture, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50615(U)) FollowedThe provider's summary judgment showing failed because its officer's affidavit did not establish a business-records foundation.
Colonia Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50679(U)) FollowedThe provider's summary judgment motion failed because its officer did not establish a business-records foundation for the supporting documents.
Vinings Spinal Diagnostics v Progressive Cas. Ins. Co. (2008 NY Slip Op 51468(U)) FollowedThe insurer failed to prove that the provider used an improper claims address, leaving a factual issue about the denial's timeliness.
Focus Radiology, P.C. v Utica Mut. Ins. Co. (2008 NY Slip Op 52050(U)) FollowedThe provider failed to establish a prima facie case because its employee's affidavit did not identify the annexed documents as business records.
A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50331(U)) FollowedThe insurer's evidence established a founded belief that the assignors' injuries did not arise from an insured incident.

Show all 34 citing decisions

Similar decisions

Fortune Med., P.C. v New York Cent. Mut. Fire Ins. (2008 NY Slip Op 50522(U))The provider failed to establish entitlement to summary judgment because its officer's affidavit did not authenticate the supporting records.
Fortune Med., P.C. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 50376(U))The provider failed to establish its prima facie case because its officer's affidavit lacked a business-records foundation.
Fortune Med., P.C. v Kemper Ins. Co. (2007 NY Slip Op 50388(U))The provider failed to establish its prima facie case because its officer's affidavit did not authenticate the supporting business records.
Fair Price Med. Supply Corp. v Allstate Ins. Co. (2007 NY Slip Op 50608(U))The provider's officer affidavit failed to establish a business-records foundation, defeating its prima facie summary judgment showing.
Capri Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50611(U))The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation.