Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co.

[*1] Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co. 2010 NY Slip Op 50990(U) [27 Misc 3d 141(A)] Decided on June 4, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2008-2238 K C.

Quality Health Products, Inc. a/a/o MILTON WILLIAMS, ERIDANIA HIRALDO and MANUEL ESPINAL, Appellant,

against

NY Central Mutual Fire Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 4, 2008. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. As to the claims pertaining to assignors Eridania Hiraldo and Manuel Espinal, defendant contended that such claims had been made pursuant to an insurance policy which had been cancelled prior to the date of the accident and that therefore there was no coverage for such claims. As to the claim pertaining to assignor Milton Williams, who was involved in a separate accident, defendant asserted that it had timely denied the claim on the ground of lack of medical necessity. Plaintiff opposed the motion. The Civil Court granted defendant's motion, and the instant appeal ensued.

Plaintiff argues, among other things, 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, such as the lack of medical necessity of the services rendered, but rather to show that such denials were sent, and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).

Plaintiff raises the same argument regarding the notice of cancellation offered by defendant with respect to the insurance policy issued to Manuel Espinal which defendant had canceled. Again, since this document was not being offered for a hearsay purpose, it did not need to qualify as a business record. As plaintiff's remaining contentions are meritless, the order is affirmed. [*2]

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010