Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co.
Annotate this CaseDecided 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
2008-2295 K C.
Five Boro Psychological Services, P.C. a/a/o MIDZAILA REID, Appellant,
against
Progressive Northeastern Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny
Toussaint, J.), entered May 21, 2008. The order granted defendant's motion for summary
judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment. The Civil Court granted defendant's motion and denied plaintiff's cross motion. The instant appeal by plaintiff ensued.
The affidavit of defendant's personal injury protection litigation representative sufficiently set forth her personal knowledge of defendant's business practices and procedures, and sufficiently described defendant's "standard office practice or procedure designed to ensure that items are properly addressed and mailed" (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). There is no merit to plaintiff's contention that the affidavit did not establish that the claim denial forms were mailed on the date on which the affiant stated.
Plaintiff also argues 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 plaintiff's assignor's failure to appear for scheduled examinations under oath (EUOs), 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]).
Furthermore, contrary to plaintiff's contention, defendant was not required to lay a foundation for plaintiff's own records. Defendant was only required to demonstrate, as it did, that it had timely and properly denied the claim forms which are the subject of the action.
Defendant established both that the notices which scheduled the EUOs of plaintiff's assignor were properly mailed by the law firm retained by defendant to schedule and conduct [*2]said EUOs (see Residential Holding Corp., 286 AD2d at 680) and that the assignor failed to appear (see Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The fact that said law firm was contacted by the assignor's attorney to reschedule or to confirm the EUOs indicates that the attorney had communicated with the assignor and was acting on her behalf (see generally St. Vincent's Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]).
In view of the foregoing, and as the appearance of plaintiff's assignor at an EUO was a condition precedent to defendant insurer's liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), defendant's motion for summary judgment dismissing the complaint was properly granted, and plaintiff's cross motion was properly denied.
Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010
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