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THE NO-FAULT PLAYING FIELD JUST GOT MORE LEVEL
By: Charles W. Benton, Esq.

FOR THE DEFENSE

THE NO-FAULT PLAYING FIELD JUST GOT MORE LEVEL

By: Charles W. Benton, Esq.
Bruno, Gerbino & Soriano, LLP
Melville, New York


For many years, appellate courts have sided with no-fault plaintiffs on many issues. As a result, medical providers began to favor litigation over arbitration, and the courts became flooded with no-fault lawsuits. Recent appellate court decisions have, however, applied the same rules to the plaintiff medical providers as they imposed upon defendant insurance companies with respect to proving their cases.

In Dan Medical, P.C. v. New York Central Mutual Fire Insurance Company, 14 Misc. 3rd 44, 2006 N.Y. Slip Op 26483 (App. Term, 2nd Dept.), the Court made it clear that a medical provider plaintiff in a no-fault action must make out a prima facie case entitling it to summary judgment. In this case, the affidavit submitted by plaintiff’s corporate officer was deemed insufficient to establish that the officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission of documentation related to treatment as business records. CPLR 4518 provides that a business record, which is by its very nature hearsay, can be admitted into evidence if a judge finds that it was “made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.” The supporting affidavit in question failed to establish all three of these essential admission criteria.

The necessity of establishing a prima facie case for summary judgment via admissible evidence was underscored in a subsequent case, Bath Medical Supply, Inc. v Deerbrook Insurance Company, 14 Misc. 3rd 135A, 2007 N.Y. Slip Op 50179U (App. Term, 2nd Dept.). In Bath Medical, the same court that decided Dan Medical indicated that issues relating to plaintiff’s prima facie showing of its entitlement to summary judgment, such as the necessity of plaintiff establishing the proper admission of its documentation as business records, could be raised for the first time on appeal.

Thus, appellate courts are now indicating a willingness to hold a no-fault plaintiff’s feet to the fire by requiring it to establish its prima facie entitlement to summary judgment with proof in admissible form before a defendant insurance company has to establish a viable defense. The result should be a decided decrease in the number of successful summary judgment motions by no-fault medical service providers.


Editors Note: Charles W. Benton is a graduate of Fordham University School of Law and an associate of the Appeals Division at Bruno, Gerbino & Soriano, LLP, located in Melville, New York.

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