Peace of Mind, Social Work, P.C. v Travelers Prop. Cas. (2013 NY Slip Op 51119(U))

Peace of Mind, Social Work, P.C. v Travelers Prop. Cas.

2013 NY Slip Op 51119(U) [40 Misc 3d 130(A)]

Decided on July 5, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

Peace of Mind, Social Work, P.C. as Assignee of MARGARITA NIKLINA, Respondent, —

against

Travelers Property Casualty, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered October 26, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,356.15.

ORDERED that the judgment is reversed, with $30 costs, and judgment is directed to be entered in favor of defendant dismissing the complaint.

At the nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, plaintiff proffered its claim form as proof of the fact and the amount of the loss sustained. Plaintiff's foundation witness, who was employed not by plaintiff, but by a third party, testified that she had used documents from plaintiff's file in the preparation of the claim form. Under these circumstances, in order for the claim form to be admissible, pursuant to CPLR 4518 (a), as evidence of the truth of the assertions contained therein, it was necessary for plaintiff to demonstrate that "each participant in the chain producing the record, from the initial declarant to the final entrant, [acted] within the course of regular business conduct or the declaration must meet the test of some other hearsay exception" (Matter of Leon RR, 48 NY2d 117, 122 [1979]; [*2]Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21, 24 [App Term, 2d, 11th & 13th Jud Dists 2011]). Here, plaintiff's witness demonstrated neither that the documents she relied upon in preparing the claim form were made in a manner consistent with CPLR 4518 (a), nor that such documents were incorporated into her employer's records and that her employer relied upon the documents in the regular course of its business (see Viviane Etienne Med. Care, P.C., 31 Misc 3d at 24-25).

In light of plaintiff's failure to establish the admissibility of its claim form, plaintiff did not establish its entitlement to recover and, consequently, defendant was entitled to judgment dismissing the complaint (see Andrew Carothers, M.D., P.C. v. GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]). [*3]

Accordingly, the judgment is reversed and judgment is directed to be entered in favor of defendant dismissing the complaint.