Opinion
2008-308 Q C.
Decided January 9, 2009.
Appeal from a decision of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), dated October 6, 2006, deemed from a judgment of said court entered December 26, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.
Judgment affirmed with $25 costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff did not call any witnesses. Rather, plaintiff orally moved for the admission into evidence of its notice to admit and defendant's response thereto, contending that they were sufficient to establish plaintiff's prima facie case. Defendant objected and cross-moved for a directed verdict dismissing the complaint. The court granted defendant's cross motion, holding that plaintiff's notice to admit was improper because it sought information going to the heart of the matter. A judgment was entered dismissing the complaint. This appeal by plaintiff ensued.
An admission that defendant received plaintiff's claim form is not a concession of the facts set forth in said claim form ( Bajaj v General Assur. Co. , 18 Misc 3d 25 , 28 [App Term, 2d 11th Jud Dists 2007]; 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]). While defendant acknowledged that it received plaintiff's claim form and that a true copy was annexed to plaintiff's notice to admit, it remained plaintiff's burden to lay a sufficient foundation to establish that the claim form is admissible pursuant to the business records exception to the hearsay rule to prove the truth of the matters asserted therein ( see Art of Healing Medicine, P.C. v Travelers Home Mar. Ins. Co. , 55 AD3d 644 , affg 15 Misc 3d 144 [A], 2007 NY Slip Op 51161[U] [App Term, 2d 11th Jud Dists 2007]). Since plaintiff failed to proffer such proof, the court properly held that plaintiff failed to make a prima facie showing ( see id.; 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 judgment is affirmed ( see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539).
In light of the foregoing, we reach no other issue.
Pesce, P.J., Golia and Rios, JJ., concur.