May 18, 2015

Peace of Mind Social Work, P.C. v Travelers Ins. Co. (2015 NY Slip Op 50777(U))

Headnote

The court considered the facts of a nonjury trial in which a provider was attempting to recover assigned first-party no-fault benefits. The sole witness at the trial was the plaintiff's third-party biller. The main issue decided was whether the witness was capable of establishing a business record foundation for the plaintiff's claim forms, which had been admitted into evidence. The court held that, pursuant to the holding in Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the testimony of the plaintiff's witness was sufficient to establish the plaintiff's prima facie case. As the defendant failed to proffer a defense, the judgment in favor of the plaintiff was affirmed.

Reported in New York Official Reports at Peace of Mind Social Work, P.C. v Travelers Ins. Co. (2015 NY Slip Op 50777(U))

Peace of Mind Social Work, P.C. v Travelers Ins. Co. (2015 NY Slip Op 50777(U)) [*1]

Peace of Mind Social Work, P.C. v Travelers Ins. Co.

2015 NY Slip Op 50777(U) [47 Misc 3d 149(A)]

Decided on May 18, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2661 K C

Peace of Mind Social Work, P.C. as Assignee of SVETLANA YAKUBOVA, Respondent,
against
Travelers Ins. Co., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered August 3, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,483.27.

ORDERED that the judgment is affirmed, with $25 costs.

At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the sole witness was plaintiff’s third-party biller. Although defendant’s counsel argued that plaintiff had failed to establish its prima facie case—since the witness was incapable of establishing a business record foundation, pursuant to CPLR 4518, for plaintiff’s claim forms, which had been admitted into evidence—the Civil Court entered judgment in favor of plaintiff.

Pursuant to the holding in Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (114 AD3d 33 [2013]), the testimony of plaintiff’s witness was sufficient to establish plaintiff’s prima facie case. As defendant failed to proffer a defense, the judgment is affirmed (see id.; Peace of Mind, Social Work, P.C. v Travelers Aetna Prop. Cas. Corp., 43 Misc 3d 127[A], 2014 NY Slip Op 50475[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: May 18, 2015