SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
October 14, 2011
THE NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS AS ASSIGNEE OF FRANCISCA VICENCIO,
STATEWIDE INSURANCE COMPANY,
New York Hosp. Med. Ctr. of Queens v Statewide 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 14, 2011
PRESENT: IANNACCI, J.P., NICOLAI and MOLIA, JJ
Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated April 23, 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.
A no-fault provider establishes its prima facie entitlement to summary
judgment by proof of the submission to the defendant of a claim form,
proof of the fact and the amount of the loss sustained, and proof
either that the defendant failed to pay or deny the claim within the
requisite 30-day period, or that the defendant issued a timely denial
of claim that was conclusory, vague or without merit as a matter of
law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide
Mut. Ins. Co., 78 AD3d 1168 ; see also New York & Presbyt. Hosp. v Allstate Ins. Co.,
31 AD3d 512 ). 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 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 ; Art of Healing
Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 ; Viviane Etienne Med. Care, P.C. v
Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; King's Med.
Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55 [App Term, 9th
& 10th Jud Dists 2004]).
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 were rendered (see Matter of Carothers, 79 AD3d 864; King's Med. Supply, Inc., 5 Misc 3d 55). Accordingly, the order is affirmed.
Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: October 14, 2011
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