Opinion
2013-11-12
ALEV MEDICAL SUPPLY, INC. as Assignee of Jesus Encarnacion, Appellant, v. GEICO INDEMNITY COMPANY, Respondent.
Present: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 10, 2011. The judgment, after a nonjury trial, dismissed the complaint.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,530, plus statutory interest and attorney's fees.
Following a joint nonjury trial of this action by a provider to recover assigned first-party no-fault benefits and of seven other actions, the Civil Court directed a verdict in favor of defendant and dismissed plaintiff's complaint, finding that plaintiff had failed to establish its prima facie case. A judgment dismissing the complaint was subsequently entered.
At the trial, plaintiff presented a witness whose personal knowledge of plaintiff's business practices and procedures was sufficient to lay a foundation for plaintiff's claim forms to be admitted into evidence as business records (CPLR 4518; see Dan Med ., P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc.3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also Gagen v. Kipany Prods., Ltd., 27 AD3d 1042 [2006]; Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882 [2005] ). These claim forms constituted prima facie evidence of the fact and the amount of the loss sustained ( see Park Slope Med. & Surgical Supply, Inc. v. Travelers Ins. Co., 37 Misc.3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012] ). The witness also offered testimony pertaining to the submission of the claim forms to defendant and of defendant's failure to pay the claims. Thus, plaintiff established its prima facie case ( see generally Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc.3d 128[A], 2011 N.Y. Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ). Defendant offered no defense, instead relying upon the record, and rested its case.
At a trial, a plaintiff is not required to show that there is no defense to the cause of action or that a proffered defense lacks merit ( Urban Radiology, P.C. v. GEICO Gen. Ins. Co., 39 Misc.3d 146 [App Term, 2d, 11th & 13th Jud Dists 2013]; cf. CPLR 3212[b] [upon a motion for summary judgment, a plaintiff must “show that there is no defense to the cause of action or that the ... defense has no merit”] ). Rather, it is the defendant's burden at trial to show that it has a meritorious defense. In view of the foregoing, judgment should have been awarded in favor of plaintiff.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,530, plus statutory interest and attorney's fees due pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder.