October 1, 2010

PMR Physical Therapy v Country-Wide Ins. Co. (2010 NY Slip Op 51729(U))

https://www.beynensonlaw.com/case-law/pmr-physical-therapy-v-country-wide-ins-co-2010-ny-slip-op-51729u/

Court: Appellate Term, Second Department
Decided: October 1, 2010
Citation: 2010 NY Slip Op 51729(U) · 29 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

PMR Physical Therapy v Country-Wide Ins. Co., 29 Misc 3d 127(A), 2010 NY Slip Op 51729(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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.

The provider failed to establish admissible billing records because its third-party biller lacked demonstrated knowledge of its business practices. The Appellate Term, Second Department, affirmed denial of the provider's unopposed summary judgment motion for assigned no-fault benefits. The supporting affidavit came from the billing company's president, who did not demonstrate personal knowledge sufficient to establish admissibility of the annexed documents under CPLR 4518. The provider therefore failed to make a prima facie showing of entitlement to summary judgment despite the absence of opposition; the appellate court reached no other issue.

Reported in New York Official Reports at PMR Physical Therapy v Country-Wide Ins. Co. (2010 NY Slip Op 51729(U))

[*1]

PMR Physical Therapy v Country-Wide Ins. Co.

2010 NY Slip Op 51729(U) [29 Misc 3d 127(A)]

Decided on October 1, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-1193 K C.

PMR Physical Therapy as Assignee of Jason Moralez, Appellant,
against
Country-Wide Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered March 16, 2009. 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, plaintiff moved for summary judgment. The Civil Court denied plaintiff’s unopposed motion, finding that plaintiff had failed to make out a prima facie case. This appeal by plaintiff ensued.

Plaintiff’s motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the documents annexed to plaintiff’s motion papers constituted evidence in admissible form pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also 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]). Accordingly, the order is affirmed.

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

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: October 01, 2010

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 unopposed motion failed because the billing company president did not show personal knowledge of the provider's practices to make the annexed documents admissible under CPLR 4518.

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

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.

Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (2009 NY Slip Op 29155) FollowedThe provider's billing witness failed to lay a business records foundation, leaving the provider without a prima facie case at trial.
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.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.

Cited by

A label shows how the later decision treated this one.

PMR Physical Therapy v GEICO Gen. Ins. Co. (2011 NY Slip Op 51852(U)) FollowedThe provider's billing-company affidavit lacked personal knowledge needed to establish the admissibility of its supporting records.

Similar decisions

Psychology YM, P.C. v Nationwide Mut. Ins. Co. (2009 NY Slip Op 51634(U))The provider failed to establish entitlement to summary judgment because its billing company's affidavit did not comply with CPLR 4518.
A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50671(U))The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation.
RLC Med., P.C. v Allstate Ins. Co. (2009 NY Slip Op 51131(U))The provider's billing manager failed to establish admissible business records, defeating the provider's motion for summary judgment.
Comprehensive Care Physical Therapy, P.C. v State-Wide Ins. Co. (2017 NY Slip Op 51448(U))The insurer's affirmation established the provider's failure to appear for EUOs on the five claims at issue on appeal.
Preferred Med. Imaging, P.C. v Countrywide Ins. Co. (2007 NY Slip Op 50693(U))The provider failed to establish a business-records foundation for its claim forms and therefore failed to make a prima facie showing.