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Second Medical, P.C. As Assignee of Divine Bayard, Gary Driggers and Jasminda Otero v. Geico

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


February 9, 2012

SECOND MEDICAL, P.C. AS ASSIGNEE OF DIVINE BAYARD, GARY DRIGGERS AND JASMINDA OTERO,
RESPONDENT,
v.
GEICO, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered March 17, 2010.

Second Med., P.C. v GEICO

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2012

PRESENT: GOLIA, J.P., WESTON and RIOS, JJ

The order, insofar as appealed from as limited by the brief, granted plaintiff's motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as granted plaintiff's motion for summary judgment.

To establish its prima facie entitlement to summary judgment, a no-fault provider must show, among other things, proof of the fact and the amount of the loss sustained (see Insurance Law § 5106 [a]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th 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 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]; 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 sought to lay the requisite foundation for the admission of its claim forms by demonstrating, through an affidavit executed by the owner of its third-party billing company, that plaintiff's medical records had been incorporated into its billing company's records and that its billing company had relied upon the medical records in the regular course of its business (see Matter of Carothers, 79 AD3d 864; see also People v DiSalvo, 284 AD2d 547 [2001]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727 [1986]). We find that plaintiff failed to make the necessary showing that its billing company had incorporated plaintiff's medical records into its own and had relied upon them (see Viviane Etienne Med. Care, P.C., 31 Misc 3d 21).

Plaintiff also submitted an affidavit of its owner, which did lay the requisite foundation for the admission of certain documents, such as "symptom checklists," which were also submitted to the court. However, while the claim forms in this case bill for specific procedures, the documents submitted by the owner do not reflect that those particular procedures had been performed. Nor is there anything in the record showing that the third-party biller could have established that the specific procedures billed for were reflected in those documents.

Thus, neither the claim forms nor the other documents submitted by plaintiff proved that the billed-for treatment had actually been rendered. Accordingly, since plaintiff failed to submit proof of the fact and the amount of the loss sustained, the order, insofar as appealed from, is reversed and plaintiff's motion for summary judgment is denied.

Golia, J.P., Weston and Rios, JJ., concur.

Decision Date: February 09, 2012

20120209

© 1992-2012 VersusLaw Inc.



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