Eagle Surgical Supply, Inc. v Allstate Ins. Co.

[*1] Eagle Surgical Supply, Inc. v Allstate Ins. Co. 2014 NY Slip Op 50343(U) Decided on February 28, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ
2012-1282 K C.

Eagle Surgical Supply, Inc. as Assignee of JACQUELINE THOMPSON, Appellant,

against

Allstate Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 9, 2012. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney's fees.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, at which plaintiff's witness was the sole witness. Plaintiff attempted to move into evidence certain documents, including an NF-10 denial of claim
form and a mailing log. The court, however, refused to admit those documents and, after trial, dismissed the complaint on the ground that plaintiff had failed to establish a prima facie case.

Plaintiff sufficiently established that the NF-10 denial of claim form that it was trying to introduce into evidence was the denial of claim form that it had received from defendant, which referenced the claim form at issue in this action. Contrary to the ruling of the Civil Court, plaintiff should have been allowed to use that denial to demonstrate that the claim form in question had been submitted to defendant (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). In such a case, a plaintiff is not trying to use the denial as the plaintiff's own business record pursuant to CPLR 4518 (a); instead, in this context, the denial is being used as an admission by the defendant that the claim form had been received. Consequently, plaintiff's attempt to use the denial to prove the submission of the claim form was improperly denied. As plaintiff proved that defendant had not paid the claim and as defendant consented to the admission into evidence of plaintiff's claim form, judgment should have been awarded to plaintiff.

Accordingly, the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney's fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014