Understanding Third-Party Billing Records in New York No-Fault Claims: Appellate Term’s First Application of Carothers

Last reviewed: September 2026.

Legal Update (September 2026): The 2011 Appellate Term ruling discussed below was modified on appeal; the Court of Appeals’ 2015 decision accepted the third-party biller’s showing for the overdue claims. Do not treat this archived reaction as current authority excluding third-party billing proof. For statements prepared now, also use the current CPLR 2106 affirmation guide.

The appellate history changes the answer

The February 8, 2011 Appellate Term decision denied the provider’s summary judgment motion on its business-record showing. The Appellate Division later modified that order. On June 10, 2015, the Court of Appeals affirmed the Appellate Division insofar as appealed from.

The later decision required admissible evidence of mailing and receipt of the statutory claim forms and overdue payment. It found the biller’s affidavit sufficient on that record. The seven claims not timely paid or denied were the claims at issue in the favorable ruling; it was not an award of every disputed bill regardless of a timely defense.

The 2011 discussion remains useful as a record of the evidentiary dispute and Jason’s reaction. It is not the final disposition of the case. The original publication date and historical title are preserved, while the guidance below distinguishes the stages.

Jason’s original February 2011 commentary

The following is historical commentary on the intermediate ruling, including the excerpt then discussed:

When Carothers was decided, people on here commented that a third-party biller would now be able to establish a prima facie case provided certain prerequisites were met. This was based upon the following language in Carothers:

“Further, although a proper foundation can be established by a recipient of records who does not have personal knowledge of the maker’s business practices and procedures, there must still be a showing that the recipient either incorporated the records into its own records or relied upon the records in its day-to-day operations”. Andrew Carothers, M.D., P.C. v. Geico Indem. Co., 79 A.D.3d 864, 865 (2d Dept. 2010).

Admittedly, I tended to agree with the comments. But like many, I failed to look at the cases Carothers cited, particularly Plymouth Rock Fuel Corp. And, I of all people should have known better because when I wrote the losing appellant’s brief in Pine Hollow v. Progressive many years ago, my main argument was consistent with Plymouth Rock: the owner or other custodian employed at the medical facility can incorporate the records of the biller, not the other way around. I lost at that time, and perhaps that is why I acquiesced to the comments that were posted here.

In any event, the Etienne case proves that I was actually correct 7 years ago. Perhaps now, I can sleep better at night. The pertinent quote of Etienne is as follows:

“In each of those cases, an entity sought to admit a third party’s records into evidence, pursuant to the business records exception to the hearsay rule, through the testimony of the entity’s own employee. In the case at bar, however, it was plaintiff that sought to admit its own claim forms, pursuant to the business records exception to the hearsay rule, through the testimony of an employee of its third-party biller. Further, it appears that, in DiSalvo and Plymouth Rock Fuel Corp., the third party had a business duty to report accurate information to the entity seeking to use those records. In this case, although plaintiff’s employee testified that plaintiff had a business duty to report accurate information to the third-party biller, there was no showing that the third-party biller had any reciprocal duty to report accurate information to plaintiff”

Start with the purpose of the claim forms

Determine whether a form is being offered to show that a claim was sent, to establish the truth of a statement about services, or for another identified purpose. The word “business record” does not answer all of those questions at once.

The Court of Appeals did not abolish admissibility requirements. Its decision expressly required the proof of mailing to be in admissible form. A provider should therefore identify the witness’s knowledge and the documents actually supporting submission rather than assume that printing a billing form proves mailing.

Likewise, a biller’s employment relationship is not an automatic disqualification. The relevant question is what the biller knows and can support. A person who created and mailed the forms may know facts different from a person who merely downloaded a litigation packet years later.

Explain the actual billing and mailing process

For a current motion, identify how the billing company receives the information used to prepare claims. Explain which forms were created and how the witness connects the offered exhibits to the claims in dispute. If the witness relies on business records rather than personal involvement in a particular mailing, establish the relevant foundation.

Identify the mailing process separately. A completed form may show that a claim was generated. A mailing ledger or knowledgeable account may address dispatch. Evidence of receipt and the insurer’s response belongs in the chronology as well.

This is a practical review method, not a new contract clause mandated by the Court of Appeals. The older copy’s insistence that every provider must obtain specified reciprocal-duty language overstated the effect of the intermediate ruling. A contract can help explain the relationship, but it is not a substitute for the facts about what was done.

Where information passed between businesses, identify each entity’s role. Avoid an affidavit stating that all records were created by the witness’s employer if some were supplied by the medical provider. Accuracy about the source is more useful than a broad statement that cannot withstand examination.

Separate overdue claims from contested claims

Prepare a bill-by-bill chronology showing submission, receipt, verification activity, any denial and payment. Do not aggregate claims with different procedural histories and assume that the same result follows for all of them.

The 2026 Beach Medical decision cites Viviane Etienne when discussing the provider’s initial showing. It also distinguishes a medical-necessity defense from a lack-of-causation defense. That comparison matters because a failure to establish timely denial does not resolve every possible coverage question.

For the medical merits, use the medical-necessity hub. The bill’s procedural status and the clinical opinion supporting a defense are different parts of the file. A business-record objection should not be used as a substitute for analyzing either one.

Distinguish motion proof from a trial foundation

The 2015 appeal concerned summary judgment. A trial requires attention to the evidence actually admitted and the available witness or certification procedure. Do not assume that attaching an affidavit to a motion automatically makes it trial testimony.

The V.S. Medical note concerns a trial witness who did not explain the generation of claim forms. The electronic-data note concerns a computer printout whose underlying data lacked a foundation. Neither justifies ignoring the later Etienne holding.

For statements signed now, a qualifying affirmation under CPLR 2106 may replace an affidavit, subject to the statute’s exceptions. The form does not create personal knowledge, authenticate an unidentified exhibit or explain a missing mailing step.

Questions to resolve before serving the motion

Which exact claims does the motion address? Does the witness identify the exhibits, or merely describe the business’s general operations? Is the mailing proof tied to the forms in suit? Does the response identify a timely denial or another disputed issue?

Review the source of every factual sentence. A lawyer may explain the legal consequence of overdue benefits, but a witness must support the mailing facts through an appropriate evidentiary route. A downloaded claim screen and an assertion that the system is reliable may leave the key act of dispatch unexplained.

If the records come from an older billing platform, identify how the offered copy relates to the maintained data. The export date does not necessarily identify when the underlying entry was made. The Jones note explains why the ability to retrieve a record is different from knowledge supporting its use for the truth of its contents.

These checks connect the historical debate to a usable file review without adopting the intermediate decision’s rejected result.

Read the later citation in its own procedural setting

The 2026 Beach Medical opinion is useful because it cites Etienne while still examining the insurer’s distinct defenses. A provider’s adequate initial showing does not eliminate the need to read the opposition. Conversely, describing a defense does not establish that the insurer preserved it or supported it with admissible evidence.

For a practical comparison, identify the claim forms and the proof of submission first. Then identify the asserted ground for withholding payment and the evidence supporting that ground. The question whether a bill became overdue is not interchangeable with the question whether a particular peer review supplies a sufficient medical explanation.

Keep the two opinions in sequence in a research note. Etienne supplies the later appellate answer to the archived 2011 billing-proof dispute. Beach Medical illustrates a subsequent application alongside denial and causation questions. Neither opinion should be reduced to a rule that a biller always wins or that every late denial disposes of every defense.

If various bills are put into one motion, you need to label them so that the reader can see what proof supports each claim and that’s a good idea because a general description of the billing relationship should not hide different receipt, verification or denial histories. And that is just a way to organize the actual evidence, it’s not an additional statutory element.

Connect to the Encyclopedia

Start with the CPLR 4518 business-records hub. Compare the evidentiary purpose, witness knowledge and result in these notes:

• Manges: the origin of electronic data
• V.S. Medical: the missing trial foundation
• Sin Medical: letters offered for a nonhearsay purpose
• Yassin: police reports and double hearsay
• Current CPLR 2106 affirmation requirements
• Brannon: reliance on records from another business

For help assessing evidence in a pending civil matter, contact the firm with the complete records, motion papers and any court order. This historical discussion is general information, not advice on a particular file.