Opinion
No. 2010–2283NC.
2012-03-2
WESTCHESTER MEDICAL CENTER, as Assignee of Alexander Semkow, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Respondent.
Present NICOLAI, P.J., MOLIA and IANNACCI, JJ.
Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated February 5, 2010. The order denied plaintiff's motion for summary judgment.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the District Court denied plaintiff's motion for summary judgment, finding that plaintiff had failed to establish its prima facie entitlement to that relief. We agree.
To establish its prima facie entitlement to summary judgment, a no-fault provider must prove, among other things, the submission to the defendant of a claim form as well as the fact and the amount of the loss sustained ( seeInsurance Law § 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010];see also New York & Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512 [2006];New York Hosp. Med. Ctr. of Queens v. Statewide Ins. Co., 33 Misc.3d 130[A], 2011 N.Y. Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011] ). In order for a claim form to constitute prima facie proof of the fact and the amount of the loss sustained, the affidavit submitted by a plaintiff in support of its motion for summary judgment must lay a sufficient foundation to establish that the claim form annexed thereto is admissible under the business records exception to the hearsay rule, which allows a document to be used as proof of the “act, transaction, occurrence or event” recorded in the document (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];New York Hosp. Med. Ctr. of Queens, 33 Misc.3d 130[A], 2011 N.Y. Slip Op 51863[U]; Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 31 Misc.3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; Dan Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc.3d 44 [App Term, 2d & 11th Jud Dists 2006] ).
In the case at bar, plaintiff's submission of a third-party affidavit failed to demonstrate that the NF–5 hospital facility form or the UB04, which was incorporated by reference into the NF–5 and which listed the services provided by the hospital, was plaintiff's business record and therefore admissible as proof that, for example, those services had been rendered ( see Matter of Carothers, 79 AD3d 864;New York Hosp. Med. Ctr. of Queens, 33 Misc.3d 130 [A], 2011 N.Y. Slip Op 51863[U] ). Accordingly, the order is affirmed. MOLIA and IANNACCI, JJ., concur.