V.S. Med. Servs., P.C. v Travelers Ins. Co. (2013 NY Slip Op 50973(U))

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered May 5, 2011. The judgment, after a nonjury trial, dismissed the complaint.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical services rendered. At a nonjury trial, plaintiff called no witnesses and offered no claim forms into evidence. Instead, plaintiff argued that a 2005 order of the Civil Court, which had granted summary judgment in another action to plaintiff on claims that are not part of the present action, warranted judgment upon the claims at issue because the order further provided that plaintiff was entitled to recover upon a specified claim number if that claim had not been paid. At plaintiff’s request, the Civil Court admitted into evidence deposition testimony given in 2007 by defendant’s employee, who stated that three claims on behalf of assignor John Tran had been denied based on a peer review report, but she was not asked about the claim numbers for these bills. Defendant’s employee did not testify at the present trial. Plaintiff maintained that the [*2]deposition testimony was sufficient to make a connection between the 2005 order of the Civil Court and the present claims, and to prove that the present claims were unpaid. After the trial, judgment was entered in favor of defendant dismissing the complaint.

Plaintiff’s contention that, by virtue of the 2005 Civil Court order, it was entitled to judgment in the instant action lacks merit (see Buechel v Bain, 97 NY2d 295, 303-304 [2001]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; Comprehensive Med. Care of NY, P.C. v Hausknecht, 55 AD3d 777 [2008]). At trial, plaintiff failed to proffer any evidence to identify the claim forms upon which plaintiff seeks to recover, let alone establish that such claim forms bore the claim number which was set forth in the 2005 Civil Court order upon which plaintiff relied. In any event, plaintiff failed to establish that the claim forms being sued upon in the instant case remained unpaid. As a result, plaintiff failed to make out a prima facie case demonstrating its entitlement to recover (see Insurance Law § 5106 [a]; Davydov v Progressive Ins. Co., 25 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]).
Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2013