June 6, 2013

V.S. Med. Servs., P.C. v Travelers Ins. Co. (2013 NY Slip Op 50973(U))

https://www.beynensonlaw.com/case-law/v-s-med-servs-p-c-v-travelers-ins-co-2013-ny-slip-op50973u/

Court: Appellate Term, Second Department
Decided: June 6, 2013
Citation: 2013 NY Slip Op 50973(U) · 39 Misc 3d 150(A)
Posture: Trial
Outcome: Insurer prevailed
Issues: Provider's prima facie case Trial and evidence Declaratory judgment, res judicata
Legal questions: Claimant's prima facie case at trial (see the maps)

Cite as

V.S. Med. Servs., P.C. v Travelers Ins. Co., 39 Misc 3d 150(A), 2013 NY Slip Op 50973(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 failed to identify the claims sued upon or prove they remained unpaid, so it did not establish a prima facie case at trial. The provider called no witnesses and offered no claim forms, relying instead on a summary judgment order in another action and an insurer employee's deposition. The earlier order concerned other claims and conditionally authorized recovery under a specified claim number. The deposition did not identify claim numbers, and no evidence connected the present claims to that order or established nonpayment. Under Insurance Law § 5106 (a), the proof was insufficient. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after the nonjury trial.

Reported in New York Official Reports at V.S. Med. Servs., P.C. v Travelers Ins. Co. (2013 NY Slip Op 50973(U))

[*1]

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

2013 NY Slip Op 50973(U) [39 Misc 3d 150(A)]

Decided on June 6, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-1823 Q C.

V.S. Medical Services, P.C. as Assignee of JOHN TRAN, Appellant, —
against
Travelers Insurance Co., Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered May 5, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical services rendered. At a nonjury trial, plaintiff called no witnesses and offered no claim forms into evidence. Instead, plaintiff argued that a 2005 order of the Civil Court, which had granted summary judgment in another action to plaintiff on claims that are not part of the present action, warranted judgment upon the claims at issue because the order further provided that plaintiff was entitled to recover upon a specified claim number if that claim had not been paid. At plaintiff’s request, the Civil Court admitted into evidence deposition testimony given in 2007 by defendant’s employee, who stated that three claims on behalf of assignor John Tran had been denied based on a peer review report, but she was not asked about the claim numbers for these bills. Defendant’s employee did not testify at the present trial. Plaintiff maintained that the [*2]deposition testimony was sufficient to make a connection between the 2005 order of the Civil Court and the present claims, and to prove that the present claims were unpaid. After the trial, judgment was entered in favor of defendant dismissing the complaint.

Plaintiff’s contention that, by virtue of the 2005 Civil Court order, it was entitled to judgment in the instant action lacks merit (see Buechel v Bain, 97 NY2d 295, 303-304 [2001]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; Comprehensive Med. Care of NY, P.C. v Hausknecht, 55 AD3d 777 [2008]). At trial, plaintiff failed to proffer any evidence to identify the claim forms upon which plaintiff seeks to recover, let alone establish that such claim forms bore the claim number which was set forth in the 2005 Civil Court order upon which plaintiff relied. In any event, plaintiff failed to establish that the claim forms being sued upon in the instant case remained unpaid. As a result, plaintiff failed to make out a prima facie case demonstrating its entitlement to recover (see Insurance Law § 5106 [a]; Davydov v Progressive Ins. Co., 25 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]).
Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2013

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 at trial

Open the full map

What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?

This decision: Insufficient: claimant did not prove at trial that the claim was submitted (mailed to and received by the insurer)

Held the provider failed to make out a prima facie case at trial because it offered no claim forms or evidence identifying the claims sued upon and did not show they remained unpaid.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 103 decisions on this question in the Second Department courts and the Court of Appeals, 4 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Davydov v Progressive Ins. Co. (2009 NY Slip Op 29299) FollowedThe insurer's assignment defense was precluded because it neither sought verification of the facial discrepancy nor denied on that ground.
Bajaj v General Assur. (2007 NY Slip Op 27487)An insurer's admission that a denial form is genuine does not establish the provider's claim form as an admissible business record.

Similar decisions

Treka Med., P.C. v Travelers Ins. Co. (2016 NY Slip Op 51411(U))The insurer established nonreceipt of one claim and outstanding verification for five others.
V.S. Med. Servs., P.C. v New York Cent. Mut. Ins. (2007 NY Slip Op 51080(U))The provider's summary judgment motion failed because its officer's affidavit did not establish a business-records foundation.
V.S. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50400(U))The provider failed to prove claim submission because its corporate officer's affidavit lacked a sufficient business-records foundation.
Compas Med., P.C. v Travelers Ins. Co. (2016 NY Slip Op 51441(U))An insurer need not pay or deny a claim upon receiving only a partial response to its verification requests.
V.S. Med. Servs., P.C. v Farm Family Ins. (2007 NY Slip Op 52287(U))The provider's summary judgment proof lacked a proper business-record foundation because its officer's personal knowledge was not established.