January 12, 2010
Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co. (2010 NY Slip Op 50065(U))
https://www.beynensonlaw.com/case-law/raz-acupuncture-p-c-v-travelers-prop-cas-ins-co-2010-ny-slip-op50065u/
- Decided
- January 12, 2010
- Citation
- 2010 NY Slip Op 50065(U) · 26 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- 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 Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co. (2010 NY Slip Op 50065(U))
| Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co. |
| 2010 NY Slip Op 50065(U) [26 Misc 3d 132(A)] |
| Decided on January 12, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2008-1544 K C.
against
Travelers Property Casualty Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 23, 2007. The order, insofar as appealed from as limited by the brief, granted plaintiff’s cross motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered August 30, 2007 which awarded plaintiff the principal sum of $791.92 (see CPLR 5501 [c]).
ORDERED that the judgment is reversed without costs, so much of the order entered April 23, 2007 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court entered April 23, 2007 as granted plaintiff’s cross motion for summary judgment. The appeal is deemed to be from the judgment that was subsequently entered pursuant to said portion of the order (see CPLR 5501 [c]).
Plaintiff’s cross motion for summary judgment was supported by an affidavit of an employee 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 annexed documents were admissible pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Psychology YM, P.C. v Nationwide Mut. Ins. Co., 24 Misc 3d 140[A], 2009 NY Slip Op 51634[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 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 judgment is reversed, so much of the April 23, 2007 order as granted plaintiff’s cross motion for summary judgment is vacated [*2]and plaintiff’s cross motion for summary judgment is denied.
In light of the foregoing, we reach no other issue.
Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 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.
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 failed to make a prima facie showing because the billing company employee did not show personal knowledge of the provider's practices to make the annexed documents admissible under CPLR 4518.
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.
- Psychology YM, P.C. v Nationwide Mut. Ins. Co. (2009 NY Slip Op 51634(U)) FollowedThe provider failed to establish entitlement to summary judgment because its billing company's affidavit did not comply with CPLR 4518.
- 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. (2007 NY Slip Op 51161(U))The providers' billing manager failed to lay a business-records foundation for their partial summary judgment motion.
- 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
- 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.
- Axis Chiropractic, PLLC v Geico Gen. Ins. Co. (2010 NY Slip Op 51963(U))The provider's notice of trial was vacated because its certificate of readiness incorrectly stated that discovery was complete.
Similar decisions
- Raz Acupuncture, P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 52064(U))The provider's billing-company affidavit failed to establish a business-records foundation for the claim forms.
- Raz Acupuncture, P.C. v New S. Ins. Co. (2012 NY Slip Op 50865(U))The insurer established full payment under the workers' compensation fee schedule for the four challenged causes of action.
- Raz Acupuncture, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 50305(U))The insurer's unrebutted IME report established lack of medical necessity for acupuncture services from October 30, 2007 through January 30, 2008.
- A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 51261(U))The providers failed to establish a prima facie case because their billing manager's affidavit did not establish admissible business records.
- Raz Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2012 NY Slip Op 50871(U))The provider's fee-schedule payment challenge failed, and its remaining contention relied on material outside the record.