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Five Boro Psychological Services, P.C. As Assignee of Georgette Beckvermit v. Progressive Northeastern Insurance Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


August 4, 2011

FIVE BORO PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF GEORGETTE BECKVERMIT,
APPELLANT,
v.
PROGRESSIVE NORTHEASTERN INSURANCE CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered September 21, 2009.

Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co.

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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2011

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant's motion for summary judgment dismissing the complaint.

Plaintiff argues on appeal that, because defendant failed to attach a copy of the bill at issue in this case to its motion papers, the Civil Court could not have been able to identify the bill at issue and, thus, defendant's motion should have been denied. This contention is without merit. The complaint in this matter identified the sole bill at issue (see CPLR 3013), and defendant attached the complaint to its motion papers as required by CPLR 3212 (b). Accordingly, there could not have been any question as to the identity of the bill which is the subject of this action.

Next, plaintiff correctly argues that defendant could not rely on defendant's denial of claim forms "for the purposes of asserting the information contained within them," such as "the dates of services, the services performed, the fees charged per service provided, etc." However, defendant was not relying on them for that purpose. It is plaintiff's burden, not defendant's, to prove the elements of plaintiff's cause of action. Defendant submitted the denial of claim form to show that it was sent and that the claim was therefore denied (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since defendant did not submit the denial of claim form for a hearsay purpose, defendant was not required to lay a CPLR 4518 foundation for its admissibility (see Five Boro Psychological Servs., P.C., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U]; Quality Health Prods., Inc., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U]).

In view of the foregoing, and as plaintiff's remaining contentions similarly lack merit (see Alfa Med. Supplies v Progressive Northeastern Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51733[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur. Decision

Date: August 04, 2011

20110804

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