May 27, 2008
Struhl v Alea N. Am. Ins. Co. (2008 NY Slip Op 51113(U))
https://www.beynensonlaw.com/case-law/struhl-v-alea-n-am-ins-co-2008-ny-slip-op-51113u/
- Decided
- May 27, 2008
- Citation
- 2008 NY Slip Op 51113(U) · 19 Misc 3d 144(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 Struhl v Alea N. Am. Ins. Co. (2008 NY Slip Op 51113(U))
| Struhl v Alea N. Am. Ins. Co. |
| 2008 NY Slip Op 51113(U) [19 Misc 3d 144(A)] |
| Decided on May 27, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., GOLIA and STEINHARDT, JJ
2007-828 Q C. NO. 2007-828 Q C
against
Alea North America Insurance Company, Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 25, 2007. The judgment, entered pursuant to an order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $8,000.
Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion
for summary judgment was supported by an affidavit executed by
plaintiff, an affirmation of plaintiff’s counsel and various documents annexed thereto.
Plaintiff’s counsel submitted a copy of plaintiff’s claim form and purported to authenticate it. In
opposition, defendant argued that plaintiff’s counsel did not lay a sufficient foundation to
establish that what counsel represented to be plaintiff’s claim form was admissible as plaintiff’s
business record. The court granted plaintiff’s motion for summary judgment. A judgment was
subsequently entered pursuant thereto. This appeal by defendant ensued.
On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim form annexed to plaintiff’s moving papers. We agree. The affirmation of plaintiff’s counsel did not lay a [*2]sufficient foundation to establish that what counsel represented to be plaintiff’s claim form was admissible under the business records exception to the hearsay rule (see CPLR 4518; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff’s motion for summary judgment should have been denied.
We decline defendant’s request to search the record and award it summary judgment dismissing the complaint (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).
Pesce, P.J., and Steinhardt, J., concur.
Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and STEINHARDT, JJ.
STEVEN STRUHL, M.D.
as assignee of JOHN CAPEHART,
Respondent,
-against-
ALEA NORTH AMERICA INSURANCE COMPANY,
Appellant.
Golia, J., concurs with the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to
note that I am constrained to agree with certain propositions of law set forth in cases cited therein
which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: May 27, 2008
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 its prima facie case because counsel's affirmation could not lay a foundation showing the claim form was admissible under the business records exception.
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.
- Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51879(U)) FollowedThe provider's attorney affirmation failed to establish the admissibility of its claim forms or a prima facie entitlement to judgment.
- New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (2007 NY Slip Op 03671)An insurer need not set forth a medical rationale in a denial form when the denial rests on a medical examination or peer review report.
Similar decisions
- Struhl v Countrywide Ins. Co. (2007 NY Slip Op 52071(U))The provider's record-based affirmation failed to establish personal knowledge needed to admit the claim forms as business records.
- 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.
- Mani Med., P.C. v Eveready Ins. Co. (2008 NY Slip Op 52697(U))The insurer's stamped peer reviews failed to raise a triable issue because the record did not establish the doctor's authorization.
- Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51753(U))The insurer's attorney affirmation established the provider's failure to appear for scheduled EUOs. In this action to recover assigned first-party no-fault benefits, the provider challenged summary judgment dismissing its complaint.
- Jamhil Med., P.C. v Allstate Ins. Co. (2012 NY Slip Op 50775(U))The provider failed to establish its prima facie case because it did not show that its claim forms were admissible business records.