March 5, 2009

Dilon Med. Supply Corp. v Travelers Ins. Co. (2009 NY Slip Op 50389(U))

Headnote

The main issue in this case was whether the provider had established a prima facie case to recover assigned first-party no-fault benefits. The court considered the fact that at trial, the provider did not call any witnesses and instead relied on documents and exhibits to establish their case. However, the court held that without testimony from a witness to establish the admissibility of the documents, the provider failed to establish a prima facie case. As a result, the court affirmed the judgment dismissing the complaint, stating that it remained the provider's burden to proffer evidence in admissible form, such as by introducing the claim forms in question and calling a witness to lay a foundation for their admissibility as business records. The court's holding was that the provider did not establish a prima facie case and the insurer was entitled to judgment dismissing the complaint.

Reported in New York Official Reports at Dilon Med. Supply Corp. v Travelers Ins. Co. (2009 NY Slip Op 50389(U))

Dilon Med. Supply Corp. v Travelers Ins. Co. (2009 NY Slip Op 50389(U)) [*1]

Dilon Med. Supply Corp. v Travelers Ins. Co.

2009 NY Slip Op 50389(U) [22 Misc 3d 139(A)]

Decided on March 5, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and STEINHARDT, JJ
2008-223 Q C.

Dilon Medical Supply Corp. a/a/o MARTINE DEDE, Appellant,
against
Travelers Insurance Co., Respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), dated July 25, 2005, deemed from a judgment of the same court entered December 21, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff did not call any witnesses. Rather, plaintiff orally moved for the admission into evidence of its notice to admit and defendant’s response thereto, contending that they, and the exhibits annexed to plaintiff’s prior motion for summary judgment and defendant’s papers in opposition thereto, were sufficient to establish plaintiff’s prima facie case. Defendant objected and cross-moved for a directed verdict
dismissing the complaint. The Civil Court granted defendant’s cross motion for a directed verdict, holding that, without testimony from a witness to establish the admissibility of the documents upon which plaintiff sought to rely, plaintiff failed to establish a prima facie case. This appeal by plaintiff ensued. A judgment was subsequently entered dismissing the complaint.

At trial, “it remained plaintiff’s burden to proffer evidence in admissible form, i.e., by introducing into evidence the claim form[s] in question by, inter alia, calling a witness to lay a foundation for the admissibility of the claim form[s] as . . . business record[s], which plaintiff failed to do. Accordingly, in light of plaintiff’s failure to establish the admissibility of its claim form[s] as . . . business record[s], plaintiff did not establish a prima facie case and defendant was entitled to judgment dismissing the complaint” (Bajaj v General Assur. Co., 18 Misc 3d 25, 28-29 [App Term, 2d & 11th Jud Dists 2007] [citation omitted]; see also Art of Healing Medicine, [*2]P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]).

Weston Patterson, J.P., Golia and Steinhardt, JJ, concur.
Decision Date: March 05, 2009