Opinion
2007-322 Q C.
Decided August 19, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 12, 2007, deemed from a judgment of said court entered February 16, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 12, 2007 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $2,740.62.
Judgment reversed without costs, order entered January 12, 2007 vacated and plaintiff's motion for summary judgment denied.
PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted the motion and the instant appeal by defendant ensued. A judgment was subsequently entered.
On appeal, defendant asserts that the affirmation of plaintiff's officer, submitted in support of the motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff's moving papers and that, as a result, plaintiff failed to establish a prima facie case. In opposition, plaintiff argues that it met its prima facie burden by demonstrating that a claim was submitted and that it was not timely paid and that, in any event, it submitted the affirmation of the treating doctor, who also signed the claim forms, rendering admission of the claim forms as business records unnecessary.
In Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. ( 14 Misc 3d 44 [App Term, 2d 11th Jud Dists 2006]), this court held that, absent a sufficient foundation to demonstrate that the plaintiff's claim forms constituted evidence in admissible form as business records, the "plaintiff failed to tender proof in evidentiary form to establish its prima facie case" ( id. at 47). This court further noted that any admissions by the defendant regarding receipt of the plaintiff's claim forms "did not concede the facts asserted in the claim forms and it remained plaintiff's burden to proffer such evidence in admissible form, which it failed to do" ( id.; see also Bajaj v General Assur. , 18 Misc 3d 25 [App Term, 2d 11th Jud Dists 2007]; 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]).
We find that the affirmation submitted by the treating doctor, plaintiff's officer, was not sufficient to establish a foundation for plaintiff's claim forms. Contrary to plaintiff's contention, defendant did not waive its objection to the admissibility of plaintiff's claim forms by failing to raise it below ( Bath Med. Supply, Inc. v Deerbrook Ins. Co. , 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d 11th Jud Dists 2007]). To the extent plaintiff argues that it is possible to circumvent the requirement that said claim forms be submitted in admissible form by submitting the affirmation of the treating doctor, we need not reach that issue. Plaintiff's doctor failed to sufficiently set forth the pertinent facts relevant to the claims. In light of the foregoing, plaintiff failed to make a prima facie showing of its entitlement to summary judgment ( see Zuckerman v City of New York, 49 NY2d 557; see also Dan Med., P.C., 14 Misc 3d at 47). Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and said motion is denied.
Pesce, P.J., and Rios, J., concur.
Steinhardt, J., dissents and votes to affirm the judgment in the following memorandum:
To prevail on a motion for summary judgment in a no-fault claim, the plaintiff has the burden to demonstrate that the no-fault claim forms were submitted to the defendant and that the payment to the plaintiff is overdue ( see Insurance Law § 5106 [a]; Fair Price Med Supply Corp. v Travelers Indem. Co. , 10 NY3d 556 ; Mary Immaculate Hosp. v Allstate Ins. Co. , 5 AD3d 742 ). To meet this burden, the plaintiff is required to establish the admissibility of the no-fault claim forms by demonstrating that the forms are business records ( see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. , 14 Misc 3d 44 [App Term, 2d and 11th Jud Dists 2006]). To qualify a document as a business record, three foundational requirements must be met: (1) that the document was made in the regular course of business; (2) that it is the regular course of business to make such documents or records; and (3) that the document or record was made at the time of the act or transaction or within a reasonable time thereafter ( see CPLR 4518). [*3]
In the instant matter, Boris Kleyman, M.D., executed affirmations in support of plaintiff's claims. In each, he stated "I am an officer of . . . Plaintiff . . . who treated the Assignor . . . and having reviewed the Assignor's file, I am fully familiar with the facts and circumstances of this matter and make this affirmation based upon personal knowledge" (emphasis added). Plaintiff submitted additional affidavits in support of the motion, including one by Enrique Escala, the "Office Services Supervisor" for the attorneys who handle the processing of plaintiff's no-fault claims. Said affidavit outlined the procedures employed by him with reference to the mailing of the documentation in question to defendant.
Contrary to the opinion expressed by my learned colleagues, I find that the documents submitted by plaintiff in support of the motion, taken in their totality, qualify as business records and that they clearly fulfill the requirements for admissibility as set forth in Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. ( 14 Misc 3d 44 , supra). Plaintiff, therefore, in my opinion, met its burden and is entitled to the granting of summary judgment in its favor.