Carothers v GEICO Indem. Co.

[*1] Carothers v GEICO Indem. Co. 2010 NY Slip Op 51718(U) [29 Misc 3d 126(A)] Decided on October 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1843 K C.

Andrew Carothers, M.D. as Assignee of Robert Kitchen, Karen Bascom and Minnie McKenzie, Respondent,

against

GEICO Indemnity Company, Appellant.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), dated May 31, 2007, deemed from a judgment of the same court entered February 10, 2009 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,462.12.

ORDERED that the judgment is reversed without costs and the complaint is dismissed.

At the nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, plaintiff proffered a series of documents, including NF-3 verification of treatment forms, and sought to lay a foundation for their admission under CPLR 4518 by means of the testimony of its sole witness, the billing manager for Advanced Health Care Solutions, a company that was hired by plaintiff to handle the submission of plaintiff's no-fault claim forms. Defendant objected to the documents' admission, arguing that the billing manager was not competent to lay a foundation therefor. The Civil Court admitted the documents into evidence and thereafter found in favor of plaintiff. Defendant appealed from the court's decision. A judgment was subsequently entered, from which we deem the appeal to be taken (see CPLR 5520 [c]).

For the reasons stated in Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]) and Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (26 Misc 3d 126[A], 2009 NY Slip Op 52596[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), we conclude that the documents should not have been admitted into evidence. Since, absent their admission, plaintiff did not set forth a prima facie case, the judgment is reversed and the complaint is dismissed. [*2]

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010