In opposition, plaintiff argues that it met its prima facie burden by demonstrating that a claim was submitted and that it was not timely paid and that, in any event, it submitted the affirmation of the treating doctor, who also signed the claim forms, rendering admission of the claim forms as business records unnecessary. In Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. ( 14 Misc 3d 44 [App Term, 2d 11th Jud Dists 2006]), this court held that, absent a sufficient foundation to demonstrate that the plaintiff's claim forms constituted evidence in admissible form as business records, the "plaintiff failed to tender proof in evidentiary form to establish its prima facie case" ( id. at 47). This court further noted that any admissions by the defendant regarding receipt of the plaintiff's claim forms "did not concede the facts asserted in the claim forms and it remained plaintiff's burden to proffer such evidence in admissible form, which it failed to do" ( id.; see also Bajaj v General Assur. , 18 Misc 3d 25 [App Term, 2d 11th Jud Dists 2007]; Midborough Acupuncture, P.C. v NewYork Cent. Mut. Fire Ins. Co. , 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d 11th Jud Dists 2006]).
Accordingly, while it is true that a plaintiff provider establishes a prima facie entitlement to judgment as a matter of law "by submitting evidentiary proof that the prescribed statutory billing form had been mailed and received, and that payment of no-fault benefits was overdue" ( Mary Immaculate Hosp. v All-state Ins. Co., 5 AD3d 742, 742-743), this language should not be interpreted as dispensing with the requirement that the provider tender said evidentiary proof of the transaction sued upon "in admissible form" ( Zuckerman v City of New York, 49 NY2d 557, 558). In Dan Med., P.C. v New York Cent. Mut.Fire Ins. Co. ( 14 Misc 3d 44 [App Term, 2d 11th Jud Dists 2006]), this court held that the plaintiff provider was required to lay a proper foundation for the admissibility, under the business records exception to the hearsay rule (CPLR 4518), of the claim forms annexed to its motion for summary judgment in order to establish a prima facie case. Further, to the extent defendant insurer issued denial of claim forms or admitted receipt of plaintiffs claim forms, we held that said admissions were not concessions of the facts asserted in plaintiffs claim forms, and it was plaintiffs burden to proffer such evidence in admissible form ( Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d 11th Jud Dists 2006]).
I reviewed these submissions and the case law they cited and I now change my initial ruling and deem Plaintiff's Exhibit 3 inadmissible. Plaintiff did not establish a sufficient foundation to fit within the business record exception to the hearsay rule (CPLR 4518; Babikian v. Nikki Midtown, LLC, 60 AD3d 470, 471-472 [1st Dept 2009] [affiant's testimony lacking first-hand knowledge insufficient to authenticate documents as business records] DanMedical P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc3d 44, 46-47 [App Term 2d & 11th Jud Dist 2006]). As Defendant correctly notes, Plaintiff did not testify at any time to personal knowledge of Atlantic's billing practices and procedures - a necessary step to establish admissibility of a medical record in this way.
Upon a review of the record, we are in agreement with the Civil Court's determination that the affidavit by plaintiffs' billing manager in support of plaintiffs' motion for summary judgment failed to comply with 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]). Accordingly, the order denying plaintiffs' motion for summary judgment is affirmed.
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] ).
In support of its cross motion for summary judgment, plaintiff failed to prove the fact and the amount of the loss sustained, by demonstrating that the claim form annexed to its cross motion was admissible pursuant to CPLR 4518 ( see Art of Healing Medicine, P.C. v. Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008];Dan Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc.3d 44 [App Term, 2d & 11th Jud Dists 2006] ). Consequently, plaintiff failed to establish its prima facie case with respect to its $2,619.20 claim ( see Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010];Ave TMPC 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] ).
In support of its cross motion for summary judgment, plaintiff failed to prove the fact and the amount of the loss sustained, by demonstrating that the claim form annexed to its cross motion was admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff failed to establish its prima facie case with respect to its $2,619.20 claim (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
With respect to the Civil Court's finding, pursuant to CPLR 3212(g), that plaintiff had established its prima facie case, we conclude, contrary to defendant's contention, that the affidavit by plaintiff's billing and collection department administrator was sufficient to establish that the claim forms annexed to plaintiff's cross motion were admissible as proof of the acts, transactions, occurrences, or events recorded therein, pursuant to CPLR 4518(a) ( see Matter of Carothers v. GEICO Indem. Co., 79 AD3d 864 [2010];Art of Healing Medicine, P.C. v. Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008];Dan Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc.3d 44 [App Term, 2d & 11th Jud Dists 2006] ). Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking to compel plaintiff to appear for an EBT is granted upon the terms set forth above.
In support of its motion seeking summary judgment, plaintiff submitted an affidavit by its president which established that the claim forms had been mailed to defendant ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ). The affidavit also established proof of the fact and the amount of the loss sustained, by demonstrating that the claim forms annexed to plaintiff's motion were admissible pursuant to CPLR 4518 ( see Art of Healing Medicine, P.C. v. Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008];Dan Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc.3d 44 [App Term, 2d & 11th Jud Dists 2006] ). As to plaintiff's first, second, third, fifth, sixth, seventh, eighth, and ninth causes of action, the papers submitted by defendant in support of its cross motion showed that the denials of these claims, which were based on plaintiff's assignor's failure to appear for duly scheduled examinations under oath (EUOs), were untimely ( see Insurance Department Regulations [11 NYCRR] § 65–3 .8[a][1] ).
A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30–day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law ( seeInsurance Law § 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010];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] ). Here, plaintiff's affidavit failed to establish that the documents annexed to plaintiff's motion for summary judgment constituted proof of the fact and the amount of the loss sustained ( seeCPLR 4518; Art of Healing Medicine, P.C. v. Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008];Dan Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc.3d 44 [App Term, 2d & 11th Jud Dists 2006] ).