Key Takeaway
Court rules plaintiff failed to establish prima facie case for no-fault insurance recovery, lacking evidence to connect claim forms to prior judgment and proof of unpaid status.
V.S. Med. Servs., P.C. v Travelers Ins. Co., 2013 NY Slip Op 50973(U)(App. Term 2d Dept 2013)
“Plaintiff’s contention that, by virtue of the 2005 Civil Court order, it was entitled to judgment in the instant action lacks merit (see Buechel v Bain, 97 NY2d 295, 303-304 ; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 ; Comprehensive Med. Care of NY, P.C. v Hausknecht, 55 AD3d 777 ). At trial, plaintiff failed to proffer any evidence to identify the claim forms upon which plaintiff seeks to recover, let alone establish that such claim forms bore the claim number which was set forth in the 2005 Civil Court order upon which plaintiff relied. In any event, plaintiff failed to establish that the claim forms being sued upon in the instant case remained unpaid. As a result, plaintiff failed to make out a prima facie case demonstrating its entitlement to recover”
So Plaintiff in Action #2 failed to present proof at trial to show that summary judgment was granted on the same claim in Action #1 due to a defense that the insurance carrier could not substantiate. This was perhaps an attempt to play try to make a prima facie case in the Second Department without a foundation witness. The facts here are vague so, in essence, I am taking a shot in the dark.
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