CAROTHERS v. GEICO INDEMNITY COMPANY (2009)

Appeal from a decision of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), dated November 30, 2006, deemed from the judgment of the same court entered August 2, 2007 (see CPLR 5520[c] ).  The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,463.17.

Judgment reversed without costs and complaint dismissed.

At the trial of this action by a provider to recover assigned first-party no-fault benefits, the court admitted a series of documents into evidence, over defendant's objection, upon the testimony of plaintiff's sole witness, the billing manager for Advanced Health Care Solutions (AHCS), a company that was hired by plaintiff to handle its no-fault billing.   Defendant appeals from the judgment entered in plaintiff's favor, arguing that the witness failed to lay a business records foundation for the documents, that he was incompetent to do so, and that without said documents plaintiff failed to establish its entitlement to be paid (see Insurance Law § 5106[a];  Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742, 774 N.Y.S.2d 564 [2004];  Dan Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc.3d 44, 829 N.Y.S.2d 404 [App. Term, 2d & 11th Jud. Dists. 2006] ).   We agree.

 The witness testified that plaintiff's no-fault claim forms were prepared by plaintiff and transmitted electronically to AHCS to be printed and mailed to defendant.   He further testified that the remaining subject documents were forwarded by plaintiff to AHCS.   Even assuming that the witness was familiar with plaintiff's business practices and procedures (see People v. Surdis, 275 A.D.2d 553, 711 N.Y.S.2d 875 [2000] ), and that, as an employee of plaintiff's billing company, the witness would be competent to testify about such practices and procedures (see Hochhauser v. Electric Ins. Co., 46 A.D.3d 174, 182, 844 N.Y.S.2d 374 [2007] ), he still failed to establish, by laying the requisite foundation (see CPLR 4518 [a] ), that the documents were plaintiff's business records and, therefore, admissible in court pursuant to the business records exception to the rule against hearsay (see id.;  People v. DiSalvo, 284 A.D.2d 547, 727 N.Y.S.2d 146 [2001];   Plymouth Rock Fuel Corp. v. Leucadia, Inc., 117 A.D.2d 727, 498 N.Y.S.2d 453 [1986];  Bajaj v. General Assur., 18 Misc.3d 25, 28, 852 N.Y.S.2d 576 [App. Term, 2d & 11th Jud. Dists. 2007];  Second Med., P.C. v. Auto One Ins. Co., 20 Misc.3d 291, 857 N.Y.S.2d 898 [Civ. Ct., Kings County, Peter Paul Sweeney, J., 2008] ).   Upon reconsideration of this court's decision in Pine Hollow Med., P.C. v. Progressive Cas. Ins. Co., 13 Misc.3d 131(A), 2006 WL 2829824, 2006 N.Y. Slip Op. 51870(U) [App. Term, 2d & 11th Jud. Dists. 2006], we conclude that the law was misapplied to the facts presented in that case.   Accordingly, to the extent that it is not in accord with this decision, it should no longer be followed.

 In light of plaintiff's failure to establish the admissibility of its evidence, including its claim forms, plaintiff did not establish a prima facie case (see Bajaj, 18 Misc.3d at 29, 852 N.Y.S.2d 576).   Even under the standard set forth in Pine Hollow Med., P.C., 13 Misc.3d 131(A), 2006 N.Y. Slip Op. 51870(U), the witness' testimony was not sufficient to lay the proper foundation for the records plaintiff sought to introduce into evidence because AHCS did not incorporate plaintiff's records into its own records, but merely received, printed and mailed them.   Accordingly, defendant was entitled to judgment dismissing the complaint.