"signature on file"

While not earth shattering, the matter of Richmond Hospital a/a/o Claudio v. State Farm (Sup. Ct. Nassau Co. Index # 22143/08 [Lally, J. 2009]) that I prevailed on is proof that the courts are heeding the Court of Appeals decision in holding that an Assignment of Benefits form bearing the legend “signature on file” may be challenged through timely and proper additional verification requests.  There are two things to observe in this decision.  First, the Court found that “signature on file” satisfied the “claimant’s notice burden where the carrier does not take timely action to verify the existence of an assignment of benefits.”  Second, the Court found Plaintiff’s argument that the Claimant was unable to sign the Assignment of Benefits because he was too severely injured to be without merit.

But here is what intrigues me I suppose.   What would happen if the AOB failed to state signature on file or contain any other indicia that it was signed?  We all know that it would not matter, since standing is not part of a medical provider’s prima facie case.  Yet, Justice Lally intimates otherwise.

Finally, as I have said numerous times – if the law were being written on a clean slate, I would tend to agree with the approach the majority of no-fault jurisdictions (everyone except for New York) take and  require a medical provider to prima facie prove: (a) Standing; (b) Performance of a medically necessary service; (c) Causal relation between the service and the loss; (d) Proper billing of the service; and (e) The bill being overdue when the action was commenced.  But, we are not writing on a clean slate.  We must therefore work within the framework that has been built in the last 15 years, lest we want to live in the late Mr. Rogers’ “Land of Make Believe.”

“signature on file”

While not earth shattering, the matter of Richmond Hospital a/a/o Claudio v. State Farm (Sup. Ct. Nassau Co. Index # 22143/08 [Lally, J. 2009]) that I prevailed on is proof that the courts are heeding the Court of Appeals decision in holding that an Assignment of Benefits form bearing the legend “signature on file” may be challenged through timely and proper additional verification requests.  There are two things to observe in this decision.  First, the Court found that “signature on file” satisfied the “claimant’s notice burden where the carrier does not take timely action to verify the existence of an assignment of benefits.”  Second, the Court found Plaintiff’s argument that the Claimant was unable to sign the Assignment of Benefits because he was too severely injured to be without merit.

But here is what intrigues me I suppose.   What would happen if the AOB failed to state signature on file or contain any other indicia that it was signed?  We all know that it would not matter, since standing is not part of a medical provider’s prima facie case.  Yet, Justice Lally intimates otherwise.

Finally, as I have said numerous times – if the law were being written on a clean slate, I would tend to agree with the approach the majority of no-fault jurisdictions (everyone except for New York) take and  require a medical provider to prima facie prove: (a) Standing; (b) Performance of a medically necessary service; (c) Causal relation between the service and the loss; (d) Proper billing of the service; and (e) The bill being overdue when the action was commenced.  But, we are not writing on a clean slate.  We must therefore work within the framework that has been built in the last 15 years, lest we want to live in the late Mr. Rogers’ “Land of Make Believe.”

Assignments and business records – a deadly combination

The Fourth Department in Palisades Collection, LLC v Kedik, 2009 NY Slip Op 08259 (4th Dept. 2009) discussed standing and the business record rule, all in one decision.  Interestingly, the failure to get the assignment of benefits into evidence proved fatal to the Plaintiff Assignee’s prima facie case.  I think Judge Billings 5 years ago wrote a similar decision in the no-fault realm, prior to the Appellate Division and Court of Appeals’ decisions, which held that technical standing is not part of a plaintiff’s prima facie case.

For those who venture outside no-fault and deal with assigned actions, here is how the Fourth Division evaluates these issues:

“Plaintiff, as the alleged assignee of Discover Bank (Discover), commenced this action for breach of contract and account stated seeking to recover the balance owed on a credit card issued to defendant. Supreme Court denied in part plaintiff’s motion for partial summary judgment dismissing seven of the affirmative defenses, reserved decision in part, and ordered plaintiff to provide evidence that it had standing. Following plaintiff’s further submissions, the court concluded that plaintiff failed to provide admissible evidence of its standing and sua sponte granted defendant summary judgment dismissing the complaint. We affirm.

To establish standing to sue, plaintiff was required to submit admissible evidence that Discover assigned its interest in defendant’s debt to plaintiff (see generally Rockland Lease Funding Corp. v Waste Mgt. of N.Y., 245 AD2d 779). Here, plaintiff submitted an affidavit from its agent with exhibits, including a printed copy of several pages from an electronic spreadsheet listing defendant’s Discover account as one of the accounts sold to plaintiff. Contrary to the contention of plaintiff, the court properly determined that it failed to establish a proper foundation for the admission of the spreadsheet under the business record exception to the hearsay rule (see generally Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531).

A business record is admissible if “it was made in the regular course of any business and . . . it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter” (CPLR 4518 [a]; see generally People v Kennedy, 68 NY2d 569, 579-580). “A proper foundation for the admission of a [*2]business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” (West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950). Although plaintiff’s agent averred that the spreadsheet was kept in the regular course of business and that the entries therein were made in the regular course of business, the agent did not establish that he was familiar with plaintiff’s business practices or procedures, and he further failed to establish when, how, or by whom the electronic spreadsheet submitted in paper form was made (see CPLR 4518 [a]; West Val. Fire Dist. No. 1, 294 AD2d at 950). Furthermore, although an electronic record “shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record” (id.), plaintiff’s agent failed to establish that the printed electronic spreadsheet submitted to the court was a true and accurate representation of the electronic record kept by plaintiff.”

Standing – the Defense Applied Outside the No-Fault Arena

Wells Fargo Bank, N.A. v Marchione, 2009 NY Slip Op 07624 (2d Dept. 2009)

There seems to be an air of schizophrenia when the word “standing” finds its way in the Appellate Division reporter.  As I reported earlier, outside of the realm of no-fault practice, the “defense” of standing must be preserved through an affirmative defense in the answer or through a pre-answer motion.

In the newest Opinion and Order on this issue, the Appellate Division discusses the contours of the standing issue in the context of a foreclosure case.  The first line of Wells Fargo represents the issue, the holding and the rule of law, as set forth herein:  “The issue presented on this appeal is whether an assignee of a note and mortgage has standing to commence a foreclosure action prior to the date of the execution of the assignment. We hold that an assignee in such a case has no standing.”

Compare the holding in Wells Fargo to the issue of standing in the realm of no-fault litigation.  In no-fault practice, the failure to issue proper and timely additional verification requests, during the claims stage, will waive the standing defense.  As we all know, had this fact pattern occurred in the context of no-fault litigation, then the complaint would not have been dismissed.  This is true even if the affirmative defense of lack of standing is preserved in the answer.

While this case represents nothing new or earth shattering, it is just another example at how a uniform concept is interpreted in a less than uniform fashion.