Advanced Med. Rehab.
v.
Travelers Prop. Cas.

Civil Court of the City of New York, Kings CountyMar 16, 2004
2004 N.Y. Slip Op. 50141 (N.Y. Misc. 2004)

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40021KCV2003.

Decided March 16, 2004.

Baker Barshay, LLP (Joaquin J. Lopez, Esq.) for plaintiff.

McDonnell, Adels Goodstein, P.C.(Joel D. Epstein, Esq.) for defendant.


Plaintiff, Advanced Medical Rehabilitation, P.C., brings this action to recover $4298.37 for first party no-fault benefits provided to its assignor David Briggs, pursuant to the No-Fault provision of his insurance policy (see Insurance Law art 51). A plaintiff assignee will be awarded judgment upon establishing a prima facie case. To establish a prima facie case, plaintiff assignee must show there was a policy in effect issued by defendant insurer covering the treated person and motor vehicle collision in which the person was involved, an assignment of policy benefits, presentation of claims to the insurer for medical expenses arising from the collision and defendant insurer's failure to deny the claims within 30 days. (11 NYCRR § 65.15 (g) (6); Westchester County Medical Center v. New York Central Mut. Fire Ins. Co., 262 AD2d 553, 555 [2nd Dept]; Neuro Care Center II v. Allstate Insurance Co., NYLJ, Jan. 28, 2003, at 19, col 5; AB Medical Services PLLC v. Progressive Insurance, 2003 NY Slip Op 50790[U], 2003 NY Misc. Lexis 463; SM Supply inc., v. Geico Insurance, 2003 NY Slip Op 51192[U], 2003 NY Misc. 1067; AB Medical Services PLLC v. Highland Insurance Co., NYLJ, May 27, 2003, at 21, col 3).

Valid assignments of insurance benefits to plaintiff health care providers authorized by their patients are key to plaintiff's recovery of those benefits ( A.B. Medical Services PLLC v. Highland, supra). To be valid, the assignor's signature on the assignment of benefits must be authenticated ( A.B. Medical Services PLLC v. Highland, supra; Acevedo v. Audubon Management, 280 AD2d 91 (1st Dept 2001); Fields v. SW Realty Assoc., 301 AD2d 625 (2nd Dept 2003); Neuro Care Center II v. Allstate Ins. Co., supra).

The mere signature of the person listed as the assignor on an assignment document does not authenticate that signature ( Neurocare Center II, supra., citing Freeman v. Kirkland, 184 AD2d 331, 332 [1st Dept. 1992]; Fanelli v. Lorenzo, 187 AD2d 1004, 1005 [4th Dept 1992]). Authentication of the signatures of plaintiffs' assignor requires an attestation by a person familiar with the assignor's signatures identifying them as such ( Acevedo v. Audubon Mgt., 280 AD2d 91, 95 (1st Dept 2001); Fields v. SW Realty Assoc., 301 AD2d 625 (2nd Dept 2003); Neuro Care Center II, supra).

If a witness does not authenticate the executed assignment, it is inadmissible ( Neurocare Center II, supra; citing People v. Michallow, 201 AD2d 915 (4th Dept. 1994); People v. Boswell, 167 AD2d 928 (4th Dept 1990) Wilson v. Bodian, 130 AD2d 221 (2nd Dept 1987).

Absent observing the assignor place his signature on the assignment, it is not sufficient that a witness merely recite that he is familiar with the assignor's signature. (see Prince, Richardson Evidence §§ 9-103 at 703 [Farrell 11th ed]). To admit the assignment in evidence, the witness must state, under oath, how it is that he has obtained familiarity with the assignor's signature.

The assignee must establish that the claim was presented to the insurer ( SM Supply Inc. v. Geico Insurance, 2003 NY Slip Op S1192[U]). Proof of mailing of the claim to the insurer may be established by testimony of the assignee's employee who has personal knowledge that the claim was mailed ( SM Supply Inc., supra). Testimony of an employee regarding the general mailing practices of assignee's office is insufficient (Hospital for Joint Diseases v. Nationwide Mutual Ins. Co., 284 AD2d 374, 726 NYS2d 443).

This case was tried by the Court on February 19, 2004. Plaintiff presented one witness, Ruben Paez, an assistant office manager at Advanced Medical Rehabilitation. Mr. Paez testified to the practices and procedures utilized by plaintiff when a new patient comes into the office. Although it is the regular practice of the office to have the patient fill out an intake form and sign any required documentation at the initial visit, in this particular case, Mr. Paez did not witness Mr. Briggs sign the assignment or any other document and is not familiar with his signature. Furthermore, the assignment is undated and Mr. Paez could not recall the date when this assignment was actually signed.

CPLR 4518(a) codifies the business record exception to the hearsay rule. It sets forth the foundational requirements necessary to overcome a hearsay objection to the admission of certain documents. The proponent of the evidence must establish that the act, transaction, occurrence or event was made in the regular course of business; that it was the regular course of such business to make such act, transaction, occurrence or event and the entry was made at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.

The essence of the business records exception to the hearsay rule is that records systematically made for the conduct of a business, as a business are inherently highly trustworthy because they are routine reflections of day to day operations and because the "entrant's obligation" is to have them truthful and accurate for purposes of the conduct of the enterprise ( Williams v. Alexander, 309 NY 283, 286; People v. Kennedy, 68 NY2d 569, 510 NYS2d 853, [1986]).

The Business Record Rule was not intended to permit the receipt in evidence of entries made by third parties not engaged in the business or under any duty to report ( Johnson v. Lutz, 253 NY 124 [Ct App 1930]). The rule should not be extended so to admit a mere private memorandum, not made in the pursuance of any duty owing by the person making it ( Johnson v. Lutz, supra at 128; Pector v. County of Suffolk, 259 AD2d 605, 686 NYS2d 789 [2nd Dept 1999]).

The assignment of benefits is inadmissible as a business record for a number of reasons.

First, the witness did not see Mr.Briggs sign the assignment and is not familiar with his signature; therefore, he could not properly authenticate the signature. Secondly, the assignment is not dated and the witness could not recall the date it was signed; thus, it could not be said that the assignment was made at the time of the events reflected in it or within a reasonable time thereafter. Finally, the assignment of benefits was made by Mr. Briggs who is not an employee of assignee or a person under a duty to report. Mr. Briggs is merely a third party not engaged in the business and under no duty to report as mandated by CPLR 4518(a). Therefore the assignment is not a business record admissible under the business record exception to the hearsay rule as embodied in CPLR 4518(a).

Mr. Paez testified that the bills for services provided to Mr. Briggs were prepared and mailed by a separate entity. When questioned during direct examination and also while being voir dired on the admissibility of the medical bills, Mr. Paez stated. . . . "they are not prepared by us, they are prepared for us and mailed." He has no personal knowledge that the bills were mailed, when they were mailed or to whom. He has no personal knowledge of the general business practice of this billing entity. He is not qualified to testify as to the record keeping of an entity to which he is not related as an employee and about events over which he has no personal knowledge ( Standard Textile Company, Inc. v. National Equipment Rental, LTD., 80 AD2d 911, 437 NYS2d 398 [2nd dept 1981]; SM Supply, Inc., supra).

Mr. Paez is not the proper witness to lay a foundation for the admissibility of the billing records. Plaintiff should have called an employee of the billing entity who is familiar with the general business practice of this entity and has personal knowledge that the claim was mailed ( Standard Textile Company, Inc. v. National Equipment Rental, LTD., supra).

CONCLUSION

The assignment of benefits form is inadmissible. It is not a business record made in the regular course of business by a person with a business duty to report. Furthermore, it was not properly authenticated or dated.

The medical bills are inadmissible because the witness is not qualified to testify as to the record keeping practices of an entity to which he is not related as an employee and about events over which he has no personal knowledge.

Two essential elements in maintaining an action seeking the recovery of first party no-fault benefits are proof of assignment and proof that the claim was mailed to the insurer. Plaintiff has failed to prove these essential elements. Plaintiff has failed to make out a prima facie case of its entitlement to recover no-fault first party benefits. Therefore, this action must be and it is hereby dismissed.

This constitutes the decision and judgment of this Court.