Another really intelligent appealAugust 18, 2011
When will certain Plaintiffs and their law firms realize that it is okay to occasionally lose in Civil Court. Look at the the mess that Plaintiff has now created for itself. By the way, look at the bolded section of this opinion. Why did you do this to yourself Mr. Five Boro?
Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 2011 NY Slip Op 51528(U)(App. Term 2d Dept. 2011)
“Plaintiff argues on appeal that, because defendant failed to attach a copy of the bill at issue in this case to its motion papers, the Civil Court could not have been able to identify the bill at issue and, thus, defendant’s motion should have been denied. This contention is without merit. The complaint in this matter identified the sole bill at issue (see CPLR 3013), and defendant attached the complaint to its motion papers as required by CPLR 3212 (b). Accordingly, there could not have been any question as to the identity of the bill which is the subject of this action.”
“[d]efendant was not relying on [the denials] for th[e] [hearsay] purpose. It is plaintiff’s burden, not defendant’s, to prove the elements of plaintiff’s cause of action. Defendant submitted the denial of claim form to show that it was sent and that the claim was therefore denied (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Quality Health Prods., Inc. v NY Cent. Mut. Fire [*2]Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since defendant did not submit the denial of claim form for a hearsay purpose, defendant was not required to lay a CPLR 4518 foundation for its admissibility”