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, Third District (Rhonda E. Fischer, J.), dated March 27, 2008. The order denied plaintiffs’ motion for summary judgment.

Order modified by providing that plaintiffs’ motion is granted insofar as it seeks summary judgment upon the claims submitted by Gentle Care Acupuncture, P.C. seeking to recover the sums of $1,045, $1,500, $1,375, $1,090, $350.56 and $250, and the claims submitted by Craigg Total Health Family Chiropractic Care, P.C. seeking to recover the sums of $88.44, $370.70, $404.40, $235.90, $269.60 and $67.40, and matter remanded to the District Court for the calculation of statutory interest and attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, defendant served plaintiffs with various discovery demands. Thereafter, plaintiffs moved for summary judgment. In opposition, defendant argued that plaintiff RLC Medical, P.C. (RLC) was not entitled to summary judgment since RLC had failed to respond to defendant’s discovery demands which sought information as to whether RLC was ineligible for reimbursement of no-fault benefits because it was a fraudulently incorporated medical provider. Defendant also asserted that the billing submitted by plaintiffs Gentle Care Acupuncture, P.C. (Gentle Care) and Craigg Total Health Family Chiropractic Care, P.C. (Craigg) contained material misrepresentations regarding the services rendered to the assignor. The District Court denied plaintiffs’ motion, holding that defendant established that plaintiffs’ motion was premature because there was [*2]outstanding discovery and that, in any event, defendant raised issues of fact as to whether plaintiff RLC was ineligible for reimbursement of no-fault benefits. This appeal by plaintiffs ensued.

Plaintiffs established their prima facie entitlement to summary judgment by proving the submission of statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). We note that the affidavit submitted by plaintiffs’ billing manager demonstrated that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; 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]).

In opposition to plaintiffs’ motion, defendant established that while facts may exist that are essential to justify denial of the branch of the summary judgment motion seeking to recover upon claims submitted by RLC, defendant was unable to set forth sufficient facts to establish the defense of fraudulent incorporation (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) since such information was within RLC’s possession and RLC had not complied with defendant’s discovery demands therefor (see CPLR 3212 [f]). Consequently, the District Court properly denied the branch of the motion for summary judgment upon the claims submitted by RLC (see id.; Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58 [App Term, 2d & 11th Jud Dists 2006]).

However, defendant failed to demonstrate the existence of an issue of fact with regard to claims from Gentle Care, in the amounts of $1,045, $1,500, $1,375, $1,090 and $250, and claims from Craigg, in the amounts of $88.44, $370.70, $404.40, $235.90 and $67.40. Defendant denied said claims on the ground that the “injured person” failed to attend scheduled examinations under oath (EUOs). However, defendant’s opposition papers allege that plaintiffs’ assignor appeared at the EUO. Consequently, since defendant’s stated reason for the denials of said claims is not supported by the record, defendant failed to raise a triable issue of fact with respect thereto.

Defendant denied Craigg’s $269.60 claim based upon the assignor’s EUO testimony. Since the purported EUO transcript annexed to defendant’s opposition papers is not in admissible form, we decline to consider it. Accordingly, Craigg was entitled to summary judgment upon said claim.

With regard to the $350.56 claim from Gentle Care, defendant denied it on the basis of Gentle Care’s failure to establish a prima facie case of medical necessity. However, defendant’s opposing papers did not contain any support for such defense (see Amaze Med. Supply, 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U]). Accordingly, Gentle Care was entitled to summary judgment upon said claim.

In light of the foregoing, we do not reach plaintiffs’ remaining contentions.

Accordingly, the order is modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of granting Gentle Care summary judgment on its claims [*3]seeking to recover the sums of $1,045, $1,500, $1,375, $1,090, $350.56 and $250, and granting Craigg summary judgment on its claims seeking to recover the sums of $88.44, $370.70, $404.40, $235.90, $269.60 and $67.40, the matter is remanded to the District Court for the calculation of statutory interest and attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: March 19, 2009

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, Third District (Rhonda E. Fischer, J.), entered April 14, 2008. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion, arguing that it had a founded belief that the subject incident was a staged loss. District Court denied plaintiff’s motion, finding that plaintiff failed to prove its prima facie entitlement to summary judgment because, inter alia, the supporting affidavit did not lay a proper foundation for the admissibility of plaintiff’s business records. The instant appeal by plaintiff ensued.

Plaintiff established its prima facie entitlement to summary judgment by proving submission of statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). We note that the affidavit submitted by plaintiff established that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; 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]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

In opposition to plaintiff’s motion, defendant asserted that the alleged injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists 2005]). We find that defendant’s submissions were sufficient to demonstrate that defendant possessed a “founded belief that the [*2]alleged injur[ies] do[] not arise out of an insured incident” (see Central Gen. Hosp., 90 NY2d at 199). Accordingly, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: March 19, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered September 11, 2007, deemed from a judgment of the same court entered December 13, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 11, 2007 order denying defendant’s motion to dismiss the complaint pursuant to CPLR 3126 and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $612.69.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that the alleged injuries did not arise from an insured incident and that the assignor failed to comply with a condition precedent to coverage. The Civil Court granted plaintiff’s motion, holding that defendant did not plead fraud with the requisite particularity and that it did not establish a founded belief that the accident at issue was intentional. The instant appeal ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

In its answer, defendant asserted, as an affirmative defense, that “the accident that is alleged in plaintiff’s complaint was not an accident, but a staged, intentional act, for which there is no insurance coverage.” We need not determine whether this affirmative defense, which has been treated as a lack of coverage defense (see Matter of Allstate Ins. Co. v Massre, 14 AD3d 610 [2005]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), is, for the purpose of CPLR 3016 (b), based upon fraud, such that the rule’s pleading requirements are triggered, since, in any event, the defense was stated with particularity. To the extent that defendant’s [*2]conclusory allegations of “illegal and/or fraudulent conduct,” and “material misrepresentations [made] in the presentation of the claim,” may have applied to circumstances other than its staged accident defense, defendant failed to meet the pleading requirements of CPLR 3016 (b) or to raise such defenses in opposition to plaintiff’s motion for summary judgment (see First Trust Natl. Assn. v DeLuca, 284 AD2d 494 [2001]).

In view of the foregoing, in order to successfully oppose plaintiff’s motion, defendant was required to establish “the fact or founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists 2005]). Mere “unsubstantiated assertions or speculations” are insufficient (Alvarez v Prospect Hosp., 68 NY2d 320, 327 [1986]). The affidavit submitted by defendant’s investigator, the testimony given by plaintiff’s assignor and the driver during their examinations under oath, and the unsworn statement of the adverse driver submitted by defendant were insufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident (see Central Gen. Hosp., 90 NY2d 195).

Defendant argues that plaintiff’s assignor failed to provide his personal income tax returns, which defendant claims to have requested in order to substantiate the assignor’s alleged lost wages claim, and thus failed to comply with a condition precedent to coverage. We need not determine whether plaintiff’s assignor failed to comply with a condition precedent since, in light of the “confidential and private nature” of an individual’s income tax returns (see Walter Karl, Inc. v Wood, 161 AD2d 704 [1990]), which contain information far broader than that sought by defendant, defendant failed to make a sufficient showing of special circumstances to warrant their production (see Dore v Allstate Indem. Co., 264 AD2d 804 [1999]), especially given the fact that the information sought could have been obtained through other, more focused, means.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: March 17, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered July 9, 2007. The order granted defendant’s motion for summary judgment dismissing the complaint.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment, asserting, inter alia, that the services rendered were not medically necessary. In opposition, plaintiff argued, inter alia, that defendant failed to make a prima facie showing that the services at issue were not medically necessary. The Civil Court granted defendant’s motion for summary judgment dismissing the complaint, holding that defendant established a lack of medical necessity and that defendant’s denial of claim form interposing said defense was timely. The instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, defendant demonstrated that it timely mailed the denial of claim form at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]). Defendant’s affirmed peer review report and the affidavit of its peer review acupuncturist established prima facie that there was no medical necessity for the services provided by plaintiff. We note that as some of the medical reports relied upon by defendant’s acupuncturist in his peer review report were prepared by plaintiff, plaintiff could not challenge the reliability of its own medical records and reports (see Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]; see also Home [*2]Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). Furthermore, since it has been held that an “expert witness’s testimony of reliance upon out-of-court material to form an opinion may be received in evidence, provided there is proof of reliability” (Wagman v Bradshaw, 292 AD2d 84, 85-86 [2002]), the fact that defendant’s peer reviewer relied upon medical reports from other medical providers in forming his opinion as to the medical necessity of the service performed does not render the peer review report insufficient to establish a lack of medical necessity. Inasmuch as plaintiff failed to rebut said showing, defendant was entitled to summary judgment dismissing the complaint (see A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff’s remaining contention lacks merit.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: March 17, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered May 19, 2006. The order, insofar as appealed from by plaintiff, denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing plaintiff’s second cause of action. The order, insofar as cross-appealed from by defendant as limited by its brief, denied its application in the Civil Court to search the record and grant defendant summary judgment dismissing plaintiff’s first cause of action.

Order modified by providing that the branch of plaintiff’s motion seeking summary judgment on its first cause of action is granted; as so modified, affirmed without costs and matter remanded to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees thereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, and while it did not cross-move for any relief, it requested that the court search the record and grant it summary judgment. The Civil Court denied plaintiff’s motion and, upon a search of the record, granted defendant summary judgment dismissing plaintiff’s second cause of action on the ground that it was premature. Plaintiff appeals from said order. Defendant cross-appeals, arguing that, upon the search of the record, the court should have granted defendant summary judgment dismissing plaintiff’s first cause of action on the ground that it too was premature (see Coleman v Hayes, 294 AD2d 458 [2002]).

Plaintiff established its prima facie entitlement to summary judgment by proving the submission of statutory claim forms, setting forth the fact and the amount of the loss sustained, [*2]and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). We note that the affidavit submitted by plaintiff’s corporate officer demonstrated that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant established that its requests for verification and follow-up verification of the claim upon which plaintiff’s second cause of action was based, were timely mailed by setting forth the office practices or procedures used to ensure that such items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Inasmuch as plaintiff did not demonstrate that it provided defendant with the verification sought by defendant in its verification and follow-up verification requests, the Civil Court, under the circumstances presented, upon searching the record, properly granted defendant summary judgment dismissing plaintiff’s second cause of action, since said cause of action is premature as payment upon this claim is not overdue (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005] [failure to respond to request and follow-up request for verification renders action premature]).

It is uncontroverted that defendant received plaintiff’s claims for the services upon which plaintiff’s first cause of action is based and issued timely NF-10 denial of claim forms, which denied said claims due to the alleged failure of the assignor to attend independent medical examinations (IMEs). However, the affidavit submitted by the general manager/marketing director for the company defendant employed to issue verification requests on its behalf was insufficient to show that any verification requests for IMEs were mailed and that the assignor failed to appear at the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). Consequently, defendant failed to raise a triable issue of fact, and plaintiff is entitled to summary judgment upon its first cause of action (id.).

Accordingly, plaintiff’s motion for summary judgment upon its first cause of action is granted and the matter is remanded to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees upon said cause of action pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: March 16, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 19, 2007. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. The court denied both plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment, finding that an issue of fact existed as to whether the supplies provided were medically necessary. The instant appeal by defendant ensued.

Defendant, through the submission of the affidavit of its no-fault litigation claims examiner, and the affirmed peer review report of Dr. Dumesh and the affidavit of Dr. Salayka, established a prima facie case that plaintiff’s claims were properly and timely denied based upon a lack of medical necessity (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

However, in response to defendant’s cross motion, plaintiff submitted an affidavit from Dr. Shapiro in which he stated that he disagreed with the peer review report and affidavit furnished by defendant because he concluded that the supplies provided were medically necessary. Since the affidavit of Dr. Shapiro demonstrated the existence of an issue of fact as to medical necessity (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], [*2]2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]), the Civil Court properly denied defendant’s cross motion for summary judgment. Defendant’s remaining contention lacks merit. Accordingly, the order, insofar as appealed from, is affirmed.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: March 12, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered December 12, 2007. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint and, in opposition to plaintiff’s motion, argued that plaintiff did not make a prima facie showing and, in any event, plaintiff’s assignor failed to appear for independent medical examinations (IMEs). The Civil Court denied both motions. As limited by its brief, plaintiff appeals from the denial of its motion for summary judgment.

A provider establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the instant case, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms, and the affidavit of defendant’s claims representative in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). We note that the affidavit submitted by plaintiff’s billing manager sufficed to establish that the [*2]annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the record establishes plaintiff’s prima facie entitlement to summary judgment.

While defendant asserts that it timely denied plaintiff’s claim based on the assignor’s failure to appear for two scheduled IMEs, defendant failed to establish by proof in admissible form that the IME requests were timely mailed to the assignor and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, plaintiff’s motion for summary judgment should have been granted. We reach no other issue.

Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: March 10, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a “judgment” of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), dated August 4, 2005, deemed from the judgment entered December 26, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff sought to lay a foundation for the admission into evidence of its claim forms by proffering the testimony of an individual that was employed by plaintiff at the time the services at issue were allegedly rendered. The witness testified that she was not involved in billing insurance companies, but that she saw documents like the ones plaintiff sought to introduce into evidence every day and she recognized them as bills for psychological services. Defendant objected to the admission of the bills into evidence, and the court sustained the objection. Plaintiff concluded its case without calling another witness to lay a foundation for the admission into evidence of plaintiff’s claim forms. The court granted defendant’s motion to dismiss due to plaintiff’s failure to prove its prima facie case. This appeal by plaintiff ensued. A judgment was subsequently entered.

It was plaintiff’s burden “to proffer evidence in admissible form, i.e., by introducing into evidence the claim form in question by, inter alia, calling a witness to lay a foundation for the admissibility of the claim form as a business record” (Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]). Plaintiff’s witness “failed to demonstrate that [she] possessed sufficient personal knowledge of plaintiff’s office practices and procedures so as to lay a foundation for the admission of the [proffered] documents as business records” (Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists [*2]2006]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]). Accordingly, the court properly ruled that plaintiff’s claim forms were not admissible as business records and properly granted defendant’s motion to dismiss the complaint due to plaintiff’s failure to make a prima facie showing.

In light of the foregoing, we reach no other issue.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: March 10, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), dated October 6, 2005, deemed from a judgment of the same court entered March 1, 2006 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff offered the testimony of its file clerk and sought the admission into evidence of, inter alia, its purported claim form. Defendant objected on the ground that said document was hearsay and that plaintiff had failed to lay a foundation for its admission into evidence pursuant to CPLR 4518. Plaintiff then called defendant’s litigation specialist, who testified that defendant received the bill at issue. However, the Civil Court did not admit plaintiff’s bill into evidence. After defendant rested without calling any witnesses, the Civil Court granted defendant’s motion for a directed verdict, finding that plaintiff failed to make a prima facie case. This appeal by plaintiff ensued. A judgment was subsequently entered.

The testimony by the witnesses called by plaintiff did not demonstrate that they possessed sufficient personal knowledge to lay a foundation to establish that plaintiff’s bill was admissible as a business record (see CPLR 4518; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; 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]). Consequently, plaintiff failed to establish a prima facie case (see Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the judgment is [*2]affirmed.

In light of the foregoing, we reach no other issue.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: March 10, 2009

[*1]

Supreme Court, Appellate Term, Second Department, March 10, 2009

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Cascone & Kluepfel, LLP, Garden City (Joseph A. Potenza of counsel), for respondent.

{**25 Misc 3d at 49} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and moved for summary judgment dismissing the complaint, arguing that a conflict of law analysis required the application of New Jersey law, pursuant to which plaintiff’s complaint should be dismissed on the ground that the supplies provided were not medically necessary. By order dated March 13, 2008, the District Court denied both motions. The instant appeal by plaintiff ensued.

There is no dispute that a conflict exists between New York law and New Jersey law with respect to the issues raised herein. New York law requires a claim for no-fault benefits to be timely and properly denied on a prescribed NF-10 denial of claim form (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]), does not permit insurer’s delay letters, which request no verification, to toll the statutory period in which a claim must be paid or denied (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc., 8 Misc 3d 138[A], 2005 NY Slip Op 51314[U] [App Term, 2d & 11th Jud Dists 2005]), and provides that the defenses of lack of medical necessity and provider fraud are precluded if not timely and properly asserted (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; [*2]Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). New Jersey law, on the other hand, permits the defense of lack of medical necessity to be raised at any time (see Kowaleski v Allstate Ins. Co., 238 NJ Super 210, 218, 569 A2d 815, 819 [1990]).

A conflict of law relating to an insurance policy must be resolved by applying the conflict of law rules relevant to contracts (see Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 319 [1994]; Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 226 [1993]). The Court of Appeals has adopted a “center of gravity” or “grouping of contacts” approach (Auten v Auten, 308 NY 155, 160 [1954]), which gives controlling effect to the law of the state that has “the most significant relationship to the transaction and the{**25 Misc 3d at 50} parties” (Restatement [Second] of Conflict of Laws § 188 [1]). In addition to the traditional determinative factor of the place of contracting, which should be given “heavy weight” in a grouping of contacts analysis (see Haag v Barnes, 9 NY2d 554, 560 [1961]), the places of negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties are also to be considered (see Zurich Ins. Co., 84 NY2d at 319; Restatement [Second] of Conflict of Laws § 188 [2]). The accident herein occurred in New York. The relevant insurance policy was negotiated and entered into in New Jersey by the insureds who lived in New Jersey, for a vehicle which was garaged and registered in New Jersey. The assignor, who was driving the insureds’ vehicle at the time of the accident, also resided in New Jersey.

While “strong governmental interests . . . [may] be considered” (Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d at 226), we find that governmental policy is not an overriding factor under the circumstances presented herein (see e.g. Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]). Therefore, upon the application of a “center of gravity” or “grouping of contacts” analysis, we find that the dispositive factors weigh in New Jersey’s favor and, therefore, its law should control (see e.g. Scotland v Allstate Ins. Co., 35 AD3d 584 [2006]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d at 56). Consequently, since defendant is not precluded from raising the defense of lack of medical necessity under New Jersey law, defendant raised a triable issue of fact. Accordingly, the District Court’s order, insofar as appealed from, is affirmed.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.