October 14, 2011
New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co. (2011 NY Slip Op 51863(U))
https://www.beynensonlaw.com/case-law/new-york-hosp-med-ctr-of-queens-v-statewide-ins-co-2011-ny-slip-op51863u/
- Decided
- October 14, 2011
- Citation
- 2011 NY Slip Op 51863(U) · 33 Misc 3d 130(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 9 later decisions (see Cited by)
- Legal questions
- Claimant's prima facie case on motions (see the maps)
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.
Reported in New York Official Reports at New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co. (2011 NY Slip Op 51863(U))
| New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co. |
| 2011 NY Slip Op 51863(U) [33 Misc 3d 130(A)] |
| Decided on October 14, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., NICOLAI and MOLIA, JJ
2010-1212 N C.
against
Statewide Insurance Company, Respondent.
Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated April 23, 2010. The order denied plaintiff’s motion for summary judgment.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the District Court denied plaintiff’s motion for summary judgment, finding that plaintiff had failed to establish its prima facie entitlement to that relief. We agree.
A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant failed to pay or deny the claim within the requisite 30-day period, or that the defendant issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). In order for a claim form to constitute prima facie proof of the fact and the amount of the loss sustained, the affidavit submitted by a plaintiff in support of its motion for summary judgment must lay a sufficient foundation to establish that the claim form annexed thereto is admissible under the business records exception to the hearsay rule, which allows a document to be used as proof of the “act, transaction, occurrence or event” recorded in the document (CPLR 4518 [a]; see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d [*2]55 [App Term, 9th & 10th Jud Dists 2004]).
In the case at bar, plaintiff’s submission of a third-party affidavit failed to demonstrate that the NF-5 hospital facility form or the UB04, which was incorporated by reference into the NF-5 and which listed the services provided by the hospital, was plaintiff’s business record and therefore admissible as proof that, for example, those services were rendered (see Matter of Carothers, 79 AD3d 864; King’s Med. Supply, Inc., 5 Misc 3d 55). Accordingly, the order is affirmed.
Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: October 14, 2011
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.
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 hospital failed its prima facie burden because a third-party affidavit did not show the NF-5 and incorporated UB04 were its business records admissible under CPLR 4518 to prove the services were rendered.
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
A label shows how this decision treated the case it cites.
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 05602)The insurer proved a timely denial but failed to establish that the provider's treatment was unrelated to the accident.
- Matter of Carothers v GEICO Indem. Co. (2010 NY Slip Op 09256) FollowedThe provider's billing witness failed to establish a business-records foundation for claim forms merely printed and mailed by the billing company.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)The providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2011 NY Slip Op 21039)The provider failed to establish its prima facie case because its third-party biller's affidavit lacked a business-record foundation.
- King’s Med. Supply, Inc. v Hereford Ins. Co. (2004 NY Slip Op 24343) FollowedThe insurer's mailing affidavit raised a triable issue whether its denial was timely, defeating the provider's summary judgment motion.
Cited by
A label shows how the later decision treated this one.
- NYU Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 22379) FollowedA hospital seeking no-fault benefits must prove the fact and amount of loss; prescribed hospital claim forms are not inherently more reliable.
- Total Equip., LLC v Praetorian Ins. Co. (2011 NY Slip Op 21398) FollowedThe provider established a need for discovery of the no-fault file before opposing the insurer's medical-necessity motion.
- Westchester Med. Ctr. v Travelers Prop. Cas. Ins. Co. (2012 NY Slip Op 50589(U)) FollowedThe provider's summary judgment motion was denied because it failed to demonstrate prima facie entitlement to judgment.
- Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50590(U)) FollowedThe providers' summary judgment motion was denied because they failed to demonstrate prima facie entitlement to judgment.
- Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50685(U)) FollowedThe insurer failed to establish that the assignor's alleged intoxication proximately caused the accident.
- NYU-Hospital for Joint Diseases v American Tr. Ins. Co. (2012 NY Slip Op 52387(U)) FollowedThe provider's summary judgment motion was denied because it failed to demonstrate prima facie entitlement to judgment.
- Lenox Hill Hosp. v Tower Ins. Co. of N.Y. (2012 NY Slip Op 52391(U)) FollowedThe provider's summary judgment motion was denied because it failed to demonstrate prima facie entitlement to judgment.
- Lenox Hill Hosp. v Allstate Ins. Co. (2012 NY Slip Op 52411(U)) FollowedThe providers' summary judgment motion was denied because they failed to demonstrate prima facie entitlement to judgment.
- Westchester Med. Ctr. v Allstate Ins. Co. (2013 NY Slip Op 51383(U)) FollowedThe provider's summary judgment motion on the third cause of action was denied for failure to establish prima facie entitlement.
- Westchester Med. Ctr. v Government Empls. Ins. Co. (2012 NY Slip Op 50398(U))A provider must establish a business records foundation for claim forms offered as prima facie proof of the fact and amount of its loss.
Similar decisions
- New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co. (2011 NY Slip Op 01628)The hospital satisfied verification requests by supplying the precise version of the NF-5 and assignment forms the insurer requested.
- New York Hosp. Med. Ctr. of Queens v Allstate Ins. Co. (2014 NY Slip Op 00640)The providers established receipt of their claim and nonpayment or improper denial within 30 days, warranting summary judgment.
- Nyack Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52184(U))An insurer must accept a completed hospital facility form in place of an application for motor vehicle no-fault benefits.
- New York Hosp. Med. Ctr. of Queens v AIU Ins. Co. (2004 NY Slip Op 05217)The insurer waived objections to missing signatures by failing to challenge the hospital forms' completeness within 10 days of receipt.
- Richmond Univ. Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52303(U))The provider failed to establish admissible proof of services, and the insurer failed to establish that the assignor was ineligible for coverage.