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Prima facie: schizophrenia from the Appellate TermOctober 16, 2008

Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co.
2008 NY SlipOp 52046(U)(App. Term 2d Dept. 9th and 10th Jud. Dis. 2008)

I have been waiting for the day when a Henig Hospital case with the famous Hospital Receivable’s third-party billing affidavit (which we all know is insufficient to lay a proper foundation for entry into evidence of the billing forms) to be evaluated by the Appellate Term, Second Department.

Let me explain. The famous Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 (2d Dept. 2004) case is a Appellate Division, Second Department case, which involved a Henig third-party biller affidavit. The Apppellate Division, as we all know, said that a prima facie case consists of submission of a claim form, and proof that the bill is overdue. Therefore, Mary Immaculate was granted summary judgment.

Here, the Appellate Term today ducked the prima facie issue. The Court said that the issue is not preserved since the issue was not raised in the initial answering papers of New York Central Mutual. Therefore, the issue was not before the Court.

However, the case which this case “cf” cited said that the issue of admissiblity of business records may be raised for the first time on appeal. See, Bath Med. Supply, Inc. v Deerbrook Ins. Co. , 14 Misc 3d 135(A)(App. Term 2d and 11th Jud. Dis. 2007). Yet, this case said that an appellate court may not do this. My suspicion is that the Appellate Term did not want to deal with the fact that these third-party affidavits are sufficient before the Appellate Division, yet are not acceptable before the Appellate Term.

I feel that at some point, we are going to have a prima facie showdown in the Second Department. I believe this will happen soon.

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