March 2, 2012
Westchester Med. Ctr. v Government Empls. Ins. Co. (2012 NY Slip Op 50398(U))
https://www.beynensonlaw.com/case-law/westchester-med-ctr-v-government-empls-ins-co-2012-ny-slip-op50398u/
- Decided
- March 2, 2012
- Citation
- 2012 NY Slip Op 50398(U) · 34 Misc 3d 155(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 Westchester Med. Ctr. v Government Empls. Ins. Co. (2012 NY Slip Op 50398(U))
| Westchester Med. Ctr. v Government Empls. Ins. Co. |
| 2012 NY Slip Op 50398(U) [34 Misc 3d 155(A)] |
| Decided on March 2, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2010-2283 N C.
against
Government Employees Insurance Company, Respondent.
Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated February 5, 2010. The order denied plaintiff’s motion for summary judgment.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the District Court denied plaintiff’s motion for summary judgment, finding that plaintiff had failed to establish its prima facie entitlement to that relief. We agree.
To establish its prima facie entitlement to summary judgment, a no-fault provider must prove, among other things, the submission to the defendant of a claim form as well as the fact and the amount of the loss sustained (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]; New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]). In order for a claim form to constitute prima facie proof of the fact and the amount of the loss sustained, the affidavit submitted by a plaintiff in support of its motion for summary judgment must lay a sufficient foundation to establish that the claim form annexed thereto is admissible [*2]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]; New York Hosp. Med. Ctr. of Queens, 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).
In the case at bar, plaintiff’s submission of a third-party affidavit failed to demonstrate that the NF-5 hospital facility form or the UB04, which was incorporated by reference into the NF-5 and which listed the services provided by the hospital, was plaintiff’s business record and therefore admissible as proof that, for example, those services had been rendered (see Matter of Carothers, 79 AD3d 864; New York Hosp. Med. Ctr. of Queens, 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U]). Accordingly, the order is affirmed.
Molia and Iannacci, JJ., concur.
Nicolai, P.J., taking no part.
Decision Date: March 02, 2012
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 hospital failed its prima facie burden because a third-party biller's affidavit did not show the NF-5 and incorporated UB-04 were the hospital's business records admissible under CPLR 4518 as proof the services were rendered.
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
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 05602)The insurer proved a timely denial but failed to establish that the provider's treatment was unrelated to the accident.
- New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co. (2011 NY Slip Op 51863(U))The hospital's third-party affidavit failed to establish its claim forms as business records proving the services rendered.
- Matter of Carothers v GEICO Indem. Co. (2010 NY Slip Op 09256)The provider's billing witness failed to establish a business-records foundation for claim forms merely printed and mailed by the billing company.
- 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.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2011 NY Slip Op 21039)The provider failed to establish its prima facie case because its third-party biller's affidavit lacked a business-record foundation.
- 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.
Similar decisions
- Westchester Med. Ctr. v New S. Ins. Co. (2013 NY Slip Op 52085(U))Conflicting evidence concerning delivery of requested verification prevented summary judgment for the provider.
- Westchester Med. Ctr. v A Cent. Ins. Co. (2014 NY Slip Op 50347(U))Resubmission of an identical claim does not restart the insurer's 30-day period to pay or deny it.
- Westchester Neurodiagnostic, P.C. v Allstate Ins. Co. (2009 NY Slip Op 51385(U))The insurer failed to establish that its medical necessity defense was preserved by timely mailing of the denial.
- NYU Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 22379)A hospital seeking no-fault benefits must prove the fact and amount of loss; prescribed hospital claim forms are not inherently more reliable.
- Westchester Med. Ctr. v Lancer Ins. Co. (2012 NY Slip Op 02867)The insurer defeated the provider's summary judgment motion by proving timely verification requests and denial after verification was received.