Friendly Physician, P.C. v Progressive Ins. Co.

[*1] Friendly Physician, P.C. v Progressive Ins. Co. 2007 NY Slip Op 52269(U) [17 Misc 3d 1135(A)] Decided on December 3, 2007 Civil Court Of The City Of New York, Kings County Sweeney, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 7, 2007; it will not be published in the printed Official Reports.

Decided on December 3, 2007
Civil Court of the City of New York, Kings County

Friendly Physician, P.C. As Assignee of Fegena Jean Smith, Plaintiff,

against

Progressive Insurance Company, Defendant.



073321/06



Counsel for Movant-Defendant:

Short & Billy, P.C.

217 Broadway, Suite 300

New York, NY 10007

Tel.: (212) 732-3320

Counsel for Cross-movant-Plaintiff:

Ilona Finkelshteyn, P.C.

2503 65th Street

Brooklyn, NY 11204

Tel.: (718) 382-1266

Peter Paul Sweeney, J.

Upon the foregoing papers, the motion and cross-motion are decided as follows:

In this action to recover assigned first-party no-fault benefits, plaintiff Friendly Physician, P.C. moves for summary judgment and defendant Progressive Insurance Company cross-moves to compel discovery. In opposition to plaintiff's motion, defendant argues, among other things, that plaintiff did not establish its entitlement to summary judgment inasmuch as the no-fault claim forms underlying the action were not submitted in admissible form.

To prevail on its motion, plaintiff had the burden to demonstrate by admissible proof that the no-fault claim forms underlying the action were submitted to the defendant and that payment of no-fault benefits is overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 [2nd Dep't 2004]; AVA Acupuncture, P.C. v. GEICO General Ins. Co.,17 Misc 3d 41[App. Term, 2d & 11th Jud. Dists]; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128(A), 2003 NY Slip Op 51701(U), 2003 WL 23310886 [App. Term, 2d & 11th Jud Dists] ). To meet this burden, plaintiff was required to establish the admissibility of the no-fault claim forms by demonstrating that they are business records within the meaning of CPLR 4518[a] (see [*2]e.g., Dan Medical, P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, 46 [App Term, 2nd & 11th Jud Dists 2006]; Great Wall Acupuncture v. New York Central Mut. Fire Ins. Co., 14 Misc 3d 142(A), 2007 NY Slip Op. 50364(U)[App Term 2d & 11th Jud Dists]; Bath Med. Supply, Inc. v. Allstate Ins. Co.,16 Misc 3d 135(A), 2007 NY Slip Op. 51602(U) [App Term, 2nd & 11th Jud Dists] ). To do this, plaintiff was required to submit an affidavit or other admissible proof demonstrating that the claim forms were made in the regular course of business and reflect a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business, that it was the regular course of business to make the claim forms, in other words, that they were made pursuant to established procedures for the routine, habitual, systematic making of such a record, and that the claim forms were made at the time of the acts, transactions, occurrences or events described therein, or within a reasonable time thereafter (see People v. Cratsley, 86 NY2d 81, 89 [1995]; People v. Kennedy, 68 NY2d 569, 579-580 [1986]; Williams v. Alexander, 309 NY 283, 286 [1955] ).

To lay the foundational elements through an affidavit, the affiant must aver that he or she had personal knowledge of the business practices and procedures pursuant to which the claim forms were made (see Dan Medical, P.C., 14 Misc 3d at 46, citing Hefte v. Bellin, 137 AD2d 406, 408 [1st Dep't 1988]; Dayanim v. Unis, 171 AD2d 579 [1st Dep't 1991]; Midborough Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132(A), 2006 NY Slip Op. 51879(U), 2006 WL 2829993 [App. Term, 2d & 11th Jud Dists]. The affidavit must also demonstrate that the preparer of the claim forms had actual knowledge of the events recorded therein or that he or she obtained knowledge of those events from someone with actual knowledge of them and who had a business duty to relay information regarding the events to the preparer (see Capasso v. Kleen All of America, Inc., 43 AD3d 1346 [4th Dep't 2007], citing Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C4518:1; Matter of Leon RR, 48 NY2d 117, 122-123 [1979]; see also Johnson v. Lutz 253 NY 124, 128 [1930]; Toll v. State, 32 AD2d 47, 49 [3rd Dep't 1969] ).

Applying these principles, the court finds that the affidavit submitted by plaintiff to show that the no-fault claim forms are business records was woefully insufficient. No details were set forth in the affidavit as to how the claim forms were generated. Certainly, there was no showing that they were made in the regular course of business or that it was the regular course of plaintiff's business to make the claim forms.

The affidavit does not indicate that the preparer of the claim forms had actual knowledge of the events recorded therein, nor does it indicate that the preparer obtained knowledge of those events from someone with actual knowledge of them and who was under a business duty to report them to the preparer.

Finally, the affidavit did not demonstrate that the affiant possessed personal knowledge of plaintiff's office practices and procedures. The court refuses to speculate that the affiant had such knowledge simply because the identified herself as plaintiff's billing manager.

At oral argument, plaintiff's counsel argued that the holding in Infinity Health Products, Ltd. v. New York Central Mutual Fire Insurance Company, 17 Misc 3d 130(A), 2007 NY Slip Op. 51984(U) [App Term, 2nd & 11th Jud Dists] supports its position that the affidavit at issue is sufficient to demonstrate the admissibility of the no-fault claim forms. In Infinity Health [*3]Products, Ltd., supra., the Appellate Term affirmed an order which awarded summary judgment to a plaintiff medical supplies provider, stating: "[f]or the reasons stated in Dan Medical, P.C. v. New York Central Insurance Co. ( Misc 3d , 2007 NY Slip Op [App Term, 2nd & 11th Jud Dists], decided herewith, the judgment is affirmed (emphasis added)." Plaintiff's counsel maintained that the affidavit at issue in Infinity Health Products, Ltd. was virtually identical to the affidavit at issue here.

Whether the affidavit in Infinity Health Products, Ltd. is virtually identical to the one now before the court is of no moment. In the Dan Medical, P.C. case [FN1] cited by the court in Infinity Health Products, Ltd., the court stated: "[i]nasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff's establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto (id.)." Thus,it is apparent that in both Infinity Health Products, Ltd., supra. and Dan Medical, P.C., supra, the court never passed on whether the plaintiff established its prima facie entitlement to summary judgment. Thus, Infinity Health Products, Ltd. can not be viewed as appellate approval for the proposition that the affidavit before the court is sufficient to establish the admissibility of the no-fault claim forms.

In sum, inasmuch as plaintiff did not demonstrate that the no-fault claim forms annexed to the motion were business records within the meaning of CPLR 4518[a], plaintiff did not establish its entitlement to summary judgment. Accordingly, the motion must be denied regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] ).

For the reasons stated above, it is hereby

ORDERED that plaintiff's motion for summary judgment is DENIED; and it is further

ORDERED that defendant's cross-motion, which plaintiff did not oppose, is GRANTED solely to the extent that plaintiff is directed to serve answers to defendant's interrogatories within 45 days of the service of this order with notice of entry.

This constitutes the decision and order of the court.

Dated: December 3, 2007____________________________________

PETER P. SWEENEY

Civil Court Judge Footnotes

Footnote 1:The Dan Medical, P.C. case cited in Infinity Health Products, Ltd. should not be confused with the seminal case of Dan Medical, P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, 829 N.Y.S.2d 404 [App Term, 2nd & 11th Jud Dists 2006] which held that a plaintiff in an action to recover no-fault benefits must submit the underlying no-fault claim forms in admissible form to prevail on a motion for summary judgment.