January 9, 2009

V.S. Med. Servs., P.C. v Travelers Ins. Co. (2009 NY Slip Op 50048(U))

Headnote

The court considered the case of V.S. Medical Services, P.C. as assignee of Mohamad Nazir against Travelers Insurance Co. The main issue was whether the plaintiff had made a prima facie case to recover assigned first-party no-fault benefits. At trial, the plaintiff offered testimony from a former employee and sought to admit claim forms into evidence, but the defendant objected on the grounds of hearsay and failure to lay a foundation for their admission. The court reserved decision on the admissibility of the documents and on the defendant's motion to dismiss the complaint. After reviewing the submissions, the court dismissed the complaint, finding that the plaintiff had failed to make a prima facie case. The holding of the case was that the plaintiff failed to establish a prima facie case because their witness did not testify as to the generation of the claim forms, rendering them inadmissible as business records. As a result, the judgment was affirmed.

Reported in New York Official Reports at V.S. Med. Servs., P.C. v Travelers Ins. Co. (2009 NY Slip Op 50048(U))

V.S. Med. Servs., P.C. v Travelers Ins. Co. (2009 NY Slip Op 50048(U)) [*1]

V.S. Med. Servs., P.C. v Travelers Ins. Co.

2009 NY Slip Op 50048(U) [22 Misc 3d 128(A)]

Decided on January 9, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.

Decided on January 9, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-310 Q C.

V.S. MEDICAL SERVICES, P.C. as assignee of MOHAMAD NAZIR, Appellant,
against
TRAVELERS INSURANCE CO., Respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), dated November 16, 2005, deemed from a judgment of the same court entered December 21, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

At trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff offered the testimony of its former employee and sought the admission of, inter alia, its purported claim forms into evidence. Defendant objected on the ground that said documents were hearsay and that plaintiff failed to lay a foundation for their admission pursuant to CPLR 4518. The court reserved decision. Plaintiff rested without calling any further witnesses. Defendant moved to dismiss the complaint due to plaintiff’s failure to make a prima facie case. The court reserved decision on that motion as well. After reviewing the parties’ submissions, the court dismissed the complaint, finding that plaintiff failed to make a prima facie case.

While plaintiff produced a witness to testify regarding the claim forms plaintiff sought to have admitted into evidence, because said witness did not testify at all as to the generation of such claim forms, they were not admissible as business records (see CPLR 4518). Accordingly, plaintiff failed to establish a prima facie case (see Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]). Consequently, the judgment is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: January 09, 2009