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October 12, 2011

PMR Physical Therapy v GEICO Gen. Ins. Co. (2011 NY Slip Op 51852(U))

https://www.beynensonlaw.com/case-law/pmr-physical-therapy-v-geico-gen-ins-co-2011-ny-slip-op-51852u/

Court
Appellate Term, Second Department
Decided
October 12, 2011
Citation
2011 NY Slip Op 51852(U) · 33 Misc 3d 129(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Provider's prima facie case
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
PMR Physical Therapy v GEICO Gen. Ins. Co., 33 Misc 3d 129(A), 2011 NY Slip Op 51852(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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's billing-company affidavit lacked personal knowledge needed to establish the admissibility of its supporting records. The provider moved unopposed for summary judgment on assigned no-fault claims, relying on an affidavit from the president of a third-party billing company. The affiant did not demonstrate personal knowledge of the provider's business practices and procedures sufficient to establish that the attached documents were admissible under CPLR 4518. The provider therefore failed to establish prima facie entitlement to summary judgment. The Appellate Term, Second Department, affirmed the order denying the provider's motion.

Reported in New York Official Reports at PMR Physical Therapy v GEICO Gen. Ins. Co. (2011 NY Slip Op 51852(U))

[*1]
PMR Physical Therapy v GEICO Gen. Ins. Co.
2011 NY Slip Op 51852(U) [33 Misc 3d 129(A)]
Decided on October 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on October 12, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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


PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-433 K C.
PMR Physical Therapy as Assignee of KELLY ORTEGA, Appellant,

against

GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 30, 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 appeals from an order denying its unopposed motion for summary judgment.

“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” (PMR Physical Therapy v Country-Wide Ins. Co., 20 Misc 3d 127[A], 2010 NY Slip Op 51729[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 12, 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.

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 unopposed motion properly denied because the third-party biller lacked personal knowledge of the provider's practices to make the annexed documents admissible under CPLR 4518.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 81
  • Appellate TermApp Term 843
  • Trial courtsTrial 139
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 16 decisions (13 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 15 decisions (9 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
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.

  • PMR Physical Therapy v Country-Wide Ins. Co. (2010 NY Slip Op 51729(U)) FollowedThe provider failed to establish admissible billing records because its third-party biller lacked demonstrated knowledge of its business practices.
  • 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.
  • Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2011 NY Slip Op 21039) FollowedThe provider failed to establish its prima facie case because its third-party biller's affidavit lacked a business-record foundation.

Similar decisions

  • A.B. Med., PLLC v GEICO (2013 NY Slip Op 50203(U))The provider failed to establish that the insurer's denials were untimely or without merit as a matter of law.
  • City Wide Social Work & Psychological Servs., PLLC v GEICO Gen. Ins. Co. (2007 NY Slip Op 50603(U))The provider's employee affidavits failed to establish a business-records foundation for the claim at issue on appeal.
  • Axis Chiropractic, PLLC v GEICO Gen. Ins. Co. (2010 NY Slip Op 51339(U))The provider's billing-company affiant failed to show personal knowledge needed to establish a business-record foundation.
  • Comprehensive Care Physical Therapy, P.C. v GEICO Ins. Co. (2019 NY Slip Op 52069(U))The provider's summary judgment motion was denied and the insurer's cross motion dismissing the complaint for EUO nonappearance was granted.
  • New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for summary judgment.
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