Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 29, 2010.
Beal-Medea Prods., Inc. v NY Cent. Mut. Fire 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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and RIOS, 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 of the Civil Court granting defendant's motion for summary judgment dismissing the complaint.
Plaintiff argues on appeal that defendant's motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, but rather to show that the denials had been sent and that, therefore, the claims had been denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (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]).
Plaintiff's remaining contentions are similarly without merit or improperly raised for the first time on appeal.
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur. Decision ...