March 10, 2009

PDG Psychological, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50436(U))

Headnote

The court considered the testimony of witnesses and the admissibility of plaintiff's purported claim form in an action to recover assigned first-party no-fault benefits. Plaintiff's file clerk testified and sought to admit the claim form, but defendant objected on hearsay grounds. The court also heard testimony from defendant's litigation specialist. Despite this, the Civil Court did not admit plaintiff's bill into evidence and granted defendant's motion for a directed verdict. The main issue was whether plaintiff had made a prima facie case to recover the benefits. The court held that the testimony did not demonstrate sufficient personal knowledge to establish the admissibility of the bill as a business record, and therefore plaintiff failed to establish a prima facie case. The judgment dismissing the complaint was affirmed.

Reported in New York Official Reports at PDG Psychological, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50436(U))

PDG Psychological, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50436(U)) [*1]

PDG Psychological, P.C. v Progressive Cas. Ins. Co.

2009 NY Slip Op 50436(U) [22 Misc 3d 141(A)]

Decided on March 10, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 10, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON PATTERSON, J.P., GOLIA and STEINHARDT, JJ
2008-89 Q C.

PDG Psychological, P.C. a/a/o CYNTHIA GONZALES, Appellant,
against
Progressive Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), dated October 6, 2005, deemed from a judgment of the same court entered March 1, 2006 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff offered the testimony of its file clerk and sought the admission into evidence of, inter alia, its purported claim form. Defendant objected on the ground that said document was hearsay and that plaintiff had failed to lay a foundation for its admission into evidence pursuant to CPLR 4518. Plaintiff then called defendant’s litigation specialist, who testified that defendant received the bill at issue. However, the Civil Court did not admit plaintiff’s bill into evidence. After defendant rested without calling any witnesses, the Civil Court granted defendant’s motion for a directed verdict, finding that plaintiff failed to make a prima facie case. This appeal by plaintiff ensued. A judgment was subsequently entered.

The testimony by the witnesses called by plaintiff did not demonstrate that they possessed sufficient personal knowledge to lay a foundation to establish that plaintiff’s bill was admissible as a business record (see CPLR 4518; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; 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 2006]). Consequently, plaintiff failed to establish a prima facie case (see Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the judgment is [*2]affirmed.

In light of the foregoing, we reach no other issue.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: March 10, 2009