Amended motion/Admissible Reply papers/Defects in affidavits/delay letter vs. verification requests

Colonia Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 51266(U)(App. Term 2d Dept. 2013)

“Plaintiff opposed defendant’s motion, arguing that the IME doctor’s affidavit, which defendant had submitted in support of its IME nonappearance defense, was incomplete and unsigned, and cross-moved for summary judgment. Subsequently, defendant served what it denominated an amended motion for summary judgment, which included the IME doctor’s complete affidavit. Plaintiff submitted opposition thereto. The Civil Court deemed defendant’s amended motion to be its reply papers. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issues to be determined at trial were “proper notice of the IME, medical necessity and fee schedule.”

“In our opinion, the Civil Court properly considered defendant’s amended motion to be a reply since the substance of defendant’s papers was unchanged and the papers merely corrected a technical defect in the affidavit of defendant’s IME doctor (see CPLR 2001). Furthermore, plaintiff submitted a response to defendant’s reply papers (see Zernitsky v Shurka, 94 AD3d 875 [2012]; Hoffman v Kessler, 28 AD3d 718 [2006]).”

“[t]here was a discrepancy in the recitation by the IME doctor of the address at which the assignor was to have been examined.” (typographical error)

“A review of defendant’s letters to plaintiff reveals that the letters merely notified plaintiff that defendant was delaying consideration of the claims pending investigation into the motor vehicle accident at issue. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny those claims ” (A delay must ask for something)

“Contrary to the implicit determination of the Civil Court, the record shows that plaintiff did not establish its prima facie case ”

This case starts with some procedural history.  It then states that IME affidavits are not probative based upon inconsistencies and then it ends with a statement that a “delay letter” is insufficient to toll the period to pay or deny a claim.   Finally, the affidavit was insufficient to establish a business record foundation (CPLR 4518[a])


All you wanted to know about 4518(a) but were afraid to ask

All Borough Group Med. Supply, Inc. v Geico Ins. Co., 2013 NY Slip Op 23262 (App. Term 2d Dept. 2013)

“At the outset, we note that plaintiff was not required to lay a CPLR 4518 (a) foundation for the assignment of benefits form. An assignment of benefits is not hearsay; like a contract, it has independent legal significance and need only be authenticated to be admisible (sic)(see Kepner-Tregoe, Inc. v Leadership Software, Inc., 12 F3d 527, 540 [5th Cir 1994]; see also Beal-Medea Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51347[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). However, plaintiff was attempting to use the delivery receipt and claim form to prove the transactions recorded therein, and so was required to lay a CPLR 4518 (a) foundation for those records.”

“If a record is made in the regular course of business, it is the regular course of business to make the record, and the record is made at or about the time of the event being recorded, the record can be admitted into evidence pursuant to the CPLR 4518 (a) business records hearsay exception.” [Court gives you the questions to ask to lay a 4518(a) foundation.]

“A review of the evidence adduced at trial shows that plaintiff’s witness was employed by plaintiff prior to, during, and after the time that defendant had provided the supplies to plaintiff. The witness testified he and another person who was no longer employed by plaintiff had generated all of plaintiff’s claim forms, and that his father, who was the owner of plaintiff, had generated the delivery receipts. The witness also testified, albeit inartfully, that he was familiar with plaintiff’s office routine and that plaintiff’s delivery receipts and claim forms were routinely and contemporaneously made in the course of plaintiff’s business, and that it is plaintiff’s regular business practice to make such records.”

“In addition, CPLR 4518 (a) provides that a witness’s lack of personal knowledge affects the weight of the record, not the admissibility of the record.”

So consider this a basic evidence lesson from the Appellate Term.

The doctor himself could not get his bills into evidence

 AR Med. Rehabilitation, P.C. v GEICO Gen. Ins. Co., 2013 NY Slip Op 50510(U)(Civ. Ct. Kings Co. 2013)

“The court finds that Dr. Rozenberg’s testimony was insufficient to lay the foundation necessary to establish that plaintiff’s billing documents are business records. Dr. Rozenberg indicated that although Kevi Management Company (“Kevi”) was located in the same building, it was a separate entity that handled all of the collection and billing tasks for AR Medical Rehabilitation (71, 81-82). Dr. Rozenberg stated that Kevi employees generated the bills and that he would sign or stamp them, but the witness failed to adequately describe the procedure that Kevi employees followed when creating bills (tr 25-26, 71). The doctor testified that after receiving the signed or stamped bill, a Kevi employee (1) inserted bills in an envelope, (2) placed the envelopes in a plastic bag, (3) delivered the entire package to the post office for mailing, then (4) recorded the mailing of each bill in a notebook that was kept in the office (tr 24, 28).”

[There were numerous deviations from the above procedures].

“Based upon the inconsistencies and gaps in Dr. Rozenberg’s testimony and the plaintiff’s failure to produce a witness from the Kevi Company, the court finds that plaintiff failed to lay the proper foundation for admission of the documents in evidence under the business record exception to the hearsay rule (see CPLR 4518[a]; compare Art of Healing Medicine, P.C. v Travelers Home and Marine Ins. Co., 55 AD3d 644 [2d Dept 2008] and Viviane Etienne Medical Care, P.C., 31 Misc 3d 21 [2d 11 13 Jud Dists 2011] with Andrew Carothers, M.D., P.C. v Geico Indemnity Co., 79 AD3d 864 [2d Dept 2010]. Consequently, the court hereby rescinds its decision to admit plaintiff’s bills into evidence as business records on the day of trial.”

Problems abound for Dr. Rozenberg – and more than his criminal issues.



Business Records

JP Morgan Chase Bank v Shapiro, 2013 NY Slip Op 01357 (1st Dept. 2013)

“The underlying mortgage and note were originally held by Washington Mutual Bank, FA (WAMU). Plaintiff submitted the affidavit of an employee who identified herself as having personal knowledge of, inter alia, plaintiff’s status as successor-in-interest to WAMU and defendant Saadia Shapiro’s default. This was based upon her review of plaintiff’s books and records and its account records regarding Shapiro’s delinquent account (see CPLR 3212[b]).”

Note that affiant was related to successor entity and was not employed when record was generated.  This will cut both ways.

4518(a) deals with certification?

Hazzard v Burrowes, 2012 NY Slip Op 03409 (2d Dept. 2012)

“Moreover, the police accident report was inadmissible, as it was not certified as a business record (see CPLR 4518(a)), and the statements by both the appellant and Burrowes were self-serving, did not fall within any exception to the hearsay rule, and bore upon the ultimate issues of fact to be decided by the jury”

4518(a) v. 4518 (c) ?

Business record rule applies to hospitals also

Westchester Med. Ctr. v Government Empls. Ins. Co., 2012 NY Slip Op 50398(U)(App. Term 2d Dept. 2012)

“In the case at bar, plaintiff’s submission of a third-party affidavit failed to demonstrate that the NF-5 hospital facility form or the UB04, which was incorporated by reference into the NF-5 and which listed the services provided by the hospital, was plaintiff’s business record and therefore admissible as proof that, for example, those services had been rendered (see Matter of Carothers, 79 AD3d 864; New York Hosp. Med. Ctr. of Queens, 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U]).”

What is amazing here is that a hospital that gets its case 325(d)’d from Supreme Court now has to make an additional threshold showing in order for its motion for summary judgment to be granted.

Business record challenge to police report

Hernandez v Tepan, 2012 NY Slip Op 01211 (2d Dept. 2012)

“As the defendant correctly contends, the police accident report submitted by the plaintiff in support of the plaintiff’s motion for summary judgment on the issue of liability constituted inadmissible hearsay, since the report was not certified as a business record (see CPLR 4518[a]; Johnson v Lutz, 253 NY 124, 128; Bailey v Reid, 82 AD3d 809, 810; see also Noakes v Rosa, 54 AD3d 317, 318), and there is no indication that some other hearsay exception applied to the statements contained in the report”

This case is a hard read.  It says an uncertified police report is hearsay, yet cites to 4518(a) and not 4518(c).  The cases that are cited deal with, in essence, Hochauser  issues.

Another really intelligent appeal

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”

Business records (CPLR 4518[a]) back to the Appellate Division

Viviane Etienne Medical Care, P.C. v Country-Wide Ins. Co., 2011 NY Slip Op 77673(U) (Motion No: 2011-04221)(2d Dept. 2011)

Lower decision citation: Viviane Etienne Medical Care, P.C. v. Country-Wide Ins. Co., 31 Misc.3d 21 (App. Term 2d, 11th & 13th Jud. Dis. 2011).

This was the case, if you recall, where the Appellate Term, Second Department for the first time construed Carothers v. Geico, 79 AD3d 864 [2d Dept 2010]).  I have this gut feeling the Appellate Division is going to reverse the Appellate Term this time.

A very impressive win.

NYU-Hospital for Joint Diseases v Esurance Ins. Co., 2011 NY Slip Op 04436 (2d Dept. 2011)

“Esurance issued a denial of claim, which incorrectly stated the amount of the claim and the amount in dispute. Esurance denied the claim, inter alia, because Cancian allegedly was intoxicated at the time of the accident.

The hospital then commenced this action seeking payment of its bill, and moved for summary judgment on the complaint arguing, among other things, that the denial of claim was untimely, fatally defective for the above-mentioned mistakes, and that Esurance’s defense that Cancian was intoxicated was unsupported by the evidence.

“A proper denial of [a] claim [for no-fault benefits] must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4[c][11]) and must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated'” (St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d 996, 996, quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664). A timely denial of a no-fault insurance medical claim alone does not, however, avoid preclusion where the “denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d at 665).

Here, the hospital established its prima facie entitlement to judgment as a matter of law based on the untimeliness of the denial of claim….

In opposition to the motion, however, Esurance raised a triable issue of fact as to whether the denial of claim was timely issued by submitting the affidavit of an employee with knowledge of its “standard office practices or procedures designed to ensure that items were properly addressed and mailed” (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124), wherein he attested that a denial of claim was timely issued to the hospital. We note that while the denial of claim contained errors, they were not significant by themselves, and did not pose any possibility of confusion or prejudice to the hospital under the circumstances; thus, the denial was not rendered a nullity

Further, Esurance raised a triable issue of fact as to whether Cancian was “injured as a result of operating a motor vehicle while in an intoxicated condition” (Insurance Law § 5103[b][2]). Contrary to the hospital’s contention, the personal observations of the police officer present at the scene of the accident as recorded in the police accident report were properly considered by the Supreme Court under the business record exception to the hearsay rule (see CPLR 4518[a]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d at 753).”

Very good work on the part of defense counsel.  Defense counsel tore apart the ridiculous “how was I supposed to know what was denied, I only spend my life doing medical collections work.”  He also tore apart “the police report was uncertified” even though the whole world knows it says what it says.  Lastly, defense counsel beat back the untimely denial argument, but I am not sure how or what the facts were regarding this argument.  I have an email into defense counsel to find out what actually happened.