September 21, 2006
Pine Hollow Med., P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51870(U))
https://www.beynensonlaw.com/case-law/pine-hollow-med-p-c-v-progressive-cas-ins-co-2006-ny-slip-op-51870u/
- Decided
- September 21, 2006
- Citation
- 2006 NY Slip Op 51870(U) · 13 Misc 3d 131(A)
- Posture
- Trial
- Outcome
- Provider prevailed
- Later history
- Overruled by Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (2009 NY Slip Op 29155)
- Later treatment
- Distinguished in 1 and followed in 2 later decisions (see Cited by)
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 Pine Hollow Med., P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51870(U))
| Pine Hollow Med., P.C. v Progressive Cas. Ins. Co. |
| 2006 NY Slip Op 51870(U) [13 Misc 3d 131(A)] |
| Decided on September 21, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1225 K C.
against
Progressive Casualty Insurance Company, Appellant.
Appeal by defendant from a judgment of the Civil Court of the City of New York, Kings County (Bernadette F. Bayne, J.), entered March 8, 2004. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,499.64.
Judgment affirmed without costs.
At the trial of this action to recover first-party no-fault benefits for medical services provided plaintiff’s assignor, plaintiff’s witness, an employee of its billing company, testified to the company’s business practices in generating and mailing no-fault benefits applications to insurers based upon information received from its clients,
the providers of the medical services. Defendant objected below that the witness was incompetent to establish the reliability, prima facie, of the information recorded therein. However, it is well-settled that where an entity “routinely relies upon the business records of another entity in the performance of its own business” (West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950 [2002]; see People v DiSalvo, 284 AD2d 547, 548 [2001]), and “fully incorporate[s]” said information into records made in the regular course of its business (Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727, 728 [1986]), the subsequent record is admissible notwithstanding that the preparer lacked personal knowledge of the information’s [*2]accuracy (William Conover, Inc. v Waldorf, 251 AD2d 727, 728 [1998]). The lack of knowledge goes “to the weight, not the admissibility” of the record (id.).
Plaintiff otherwise established the business record foundation for the admission of the records produced on the basis of the information imparted by plaintiff to the billing company (CPLR 4518 [a]; People v DiSalvo, 284 AD2d at 548), that said information was maintained in the regular course of plaintiff’s business, and that plaintiff had a business duty to impart that information to the billing company (People v Cratsley, 86 NY2d 81, 90 [1995]).
Defendant’s argument with respect to the proof of assignment is likewise without merit. Defendant admits that “there is proof that some assignment of benefit form was mailed and received” and that its claim denial form records that plaintiff sought no-fault benefits “as [the eligible injured person’s] assignee.” Having received such a form, it was defendant’s burden to timely object to the completeness of the form or seek verification of the fact of the assignment, and its failure to do so waived any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).
Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Legal questions (2)
Questions 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.
What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?
This decision: Claimant's trial proof held to make out its prima facie case
Held at trial that the billing company employee laid an adequate business-records foundation for the claim forms built from the provider's information, and that the insurer waived proof of assignment by not seeking verification.
Of the 103 decisions on this question in the Second Department courts and the Court of Appeals, 40 (this one included) are in the same category.
Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?
This decision: Insurer barred from contesting the assignment because it did not timely object, verify, deny or plead on that ground (rules on the question, but another ground decided the case)
Held the insurer, having received an assignment form and acknowledged the claimant as assignee in its denial, waived any assignment defense by failing to timely object to the form's completeness or seek verification of the assignment.
Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 48 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Hospital for Joint Diseases v Allstate Ins. Co. (2005 NY Slip Op 06192) FollowedAn insurer waived assignment objections by failing to timely object to hospital forms or seek verification of the assignments.
- New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 05626) FollowedThe insurer failed to establish mailing of assignment-verification requests and could not defeat the hospitals' summary judgment motion.
- A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co. (2004 NY Slip Op 24506) FollowedThe providers' billing manager affidavit failed to establish submission of properly completed claim forms.
Cited by
A label shows how the later decision treated this one.
- Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (2009 NY Slip Op 29155) OverruledThe provider's billing witness failed to lay a business records foundation, leaving the provider without a prima facie case at trial.
- Second Med., P.C. v Auto One Ins. Co. (2008 NY Slip Op 28169) DistinguishedA billing company's incorporation of a provider's records into a claim form does not cure hearsay in the underlying records.
- Andrew Carothers, M.D., P.C. v Travelers Ins. Co. (2006 NY Slip Op 52328(U)) FollowedThe insurer failed to prove lack of medical necessity through a peer-review report admitted only to establish claim receipt and timely denial.
- Andrew Carothers, M.D., P.C. v Progressive Ins. Co. (2006 NY Slip Op 52479(U)) FollowedThe insurer failed to prove verification mailing or a proper denial, precluding its medical-necessity defense at trial.
- Complete Orthopedic Supplies, Inc. v State Farm Ins. Co. (2007 NY Slip Op 27192)A fee schedule dispute remained triable because the insurer established neither a proper scheduled fee nor a comparable fee for the goods.
Similar decisions
- All Borough Group Med. Supply, Inc. v GEICO Ins. Co. (2013 NY Slip Op 23262)A witness familiar with a provider's office routine may lay a business-records foundation without having made the records.
- Rockaway Blvd. Med. P.C. v Progressive Ins. (2005 NY Slip Op 25278)A provider's omission of its relationship with the treating physician from claim forms does not defeat its prima facie case.
- A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2005 NY Slip Op 25032)An insurer may assert a lack-of-coverage defense despite an untimely denial of no-fault claims.
- Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50762(U))The provider established its prima facie case, and the insurer failed to prove timely mailing of denials needed to avoid preclusion.
- 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.