Omni Chiropractic, P.C. v Travelers Ins. Co.

[*1] Omni Chiropractic, P.C. v Travelers Ins. Co. 2009 NY Slip Op 52505(U) [25 Misc 3d 142(A)] Decided on May 8, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 8, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2008-597 Q C.

Omni Chiropractic, P.C. as assignee of YACKUELIN RODRIGUEZ, Appellant,

against

Travelers Insurance Co., Respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), dated July 7, 2005, deemed from a judgment of the same court entered December 12, 2005 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff's sole witness, its biller, testified that he generated the bills at issue and that he personally mailed them. Defendant called no witnesses. After trial, the Civil Court found in favor of defendant and dismissed the complaint, determining that
plaintiff had failed to establish that the bills were unpaid. This appeal by plaintiff ensued. A judgment was subsequently entered.

A provider generally establishes its prima facie case by proof of the submission of a statutory claim form, setting forth the fact and amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the case at bar, plaintiff failed to adduce evidence establishing that payment of the no-fault benefits at issue was overdue. Contrary to plaintiff's contention, neither the admission of its bills into evidence nor plaintiff's prosecution of this action gives rise to an inference that the bills were overdue or dispenses with plaintiff's obligation to establish this element of its prima facie case. Accordingly, the judgment is affirmed.

Weston, J.P., Golia and Steinhardt, JJ., concur. [*2]
Decision Date: May 08, 2009