Andrew Carothers, M.D., P.C. v. Geico Indem. Co.
| Decision Date | 14 December 2010 |
| Citation | 79 A.D.3d 864,914 N.Y.S.2d 199 |
| Parties | In the Matter of ANDREW CAROTHERS, M.D., P.C., etc., appellant, v. GEICO INDEMNITY COMPANY, respondent. |
| Court | New York Supreme Court — Appellate Division |
Smith Valliere PLLC, New York, N.Y. (Mark W. Smith and Timothy A. Valliere of counsel), for appellant.
Teresa M. Spina, Woodbury, N.Y. (P. Stephanie Estevez of counsel), for respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON, DANIEL D. ANGIOLILLO, and LEONARD B. AUSTIN, JJ.
In an action to recover no-fault medical payments under certain insurance contracts, the plaintiff appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts, datedApril 14, 2009, which reversed a judgment of the Civil Court of the City of New York, Kings County (Graham, J.), entered August 2, 2007, which, after a nonjury trial, awarded the plaintiff the principal sum of $4,463.17, and dismissed the complaint.
ORDERED that the order dated April 14, 2009, is affirmed, with costs.
The testimony of an employee of the company that handled the plaintiff's medical billing was insufficient to lay a foundation for the admission of the claim forms under the business records exception of the hearsay rule ( see Art of Healing Medicine, P.C. v. Travelers Home & Mar. Ins. Co., 55 A.D.3d 644, 864 N.Y.S.2d 792). Such records were inadmissible because the billing company did not create the records and there was no showing that its employee was familiar with the particular record-keeping procedures of the plaintiff ( see West Val. Fire Dist. No. 1 v. Village of Springville, 294 A.D.2d 949, 950, 743 N.Y.S.2d 215). Further, although aproper 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 ( see People v. A & S DiSalvo, Co., 284 A.D.2d 547, 548, 727 N.Y.S.2d 146; Plymouth Rock Fuel Corp. v. Leucadia, Inc., 117 A.D.2d 727, 498 N.Y.S.2d 453). Here, the billing company's mere printing and mailing of the documents to the insurer did not establish that the documents were incorporated into its records or that it relied upon the records in its regular course of business ( see Lodato v. Greyhawk N. Am., LLC, 39 A.D.3d 494, 495, 834 N.Y.S.2d 239). Since the subject documents...
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