Richmond Univ. Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52303(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated July 30, 2010. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint.
A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant failed to pay or deny the claim within the requisite 30-day period, or that the defendant issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). In order for the claim form to constitute prima facie proof of the fact and the amount of the loss sustained, the affidavit submitted by a provider in support of its motion for summary judgment must lay a sufficient foundation to establish that the claim form annexed thereto is admissible under the business records exception to the hearsay rule, which allows a document to be used as proof of the “act, transaction, occurrence or event” recorded in the document (CPLR 4518 [a]; see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).

Plaintiff’s submission of a third-party’s affidavit failed to demonstrate that the UB-04 form, which was incorporated by reference into the NF-5 hospital facility form and which listed [*2]the services provided by the hospital, was plaintiff’s business record and, therefore, was admissible as proof that those services were rendered (see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U]). Consequently, plaintiff did not establish its prima facie entitlement to summary judgment as a matter of law, and its motion for summary judgment is denied.

In addition, a review of the record indicates that defendant is not entitled to summary judgment dismissing the complaint, as defendant did not establish, as a matter of law, that the assignor was not an eligible injured person because she did not reside in the insured’s household on the date of the accident (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [d]; see generally Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]). Insurance Department Regulations (11 NYCRR) § 65-1.1 (d) defines an eligible injured person as, among other things, a child who regularly resides in the insured’s household even if he or she is temporarily living elsewhere. Consequently, as the affidavit of defendant’s investigators alleged
that the assignor had, at some point, resided with her father, the insured, defendant’s cross motion was properly denied.

Tanenbaum, J.P., Nicolai and Molia, JJ., concur.
Decision Date: December 19, 2011