« Back to BG&S in the News

DAN MEDICAL AND THE ACTUAL MEANING OF DELTA DIAGNOSTIC RADIOLOGY V. PROGRESSIVE
By: Michael A. Callinan, Esq.

FOR THE DEFENSE

DAN MEDICAL AND THE ACTUAL MEANING OF
DELTA DIAGNOSTIC RADIOLOGY V. PROGRESSIVE

By: Michael A. Callinan, Esq.
Bruno, Gerbino & Soriano, LLP
Melville, New York


On January 31, 2008 an article appeared in the New York Law Journal that commented on recent developments in the realm of No-Fault litigation. The article, entitled “Prima Facie: Dan Medical Softened?” highlighted an opinion issued by the Appellate Term of the Second Department on December 27, 2007. The authors of the January 31, 2008 article opined that the Appellate Term’s decision in Delta Diagnostic Radiology, P.C. v. Progressive Casualty Insurance Company, 18 Misc. 3d 128A (N.Y. App. Term 2nd Dept. 2007) marked a “softening” of Dan Medical and its progeny.

Contrary to the opinion expressed by the authors of “Prima Facie: Dan Medical Softened?” the Appellate Term’s decision in Delta Diagnostic does little to “soften” the applicability of Dan Medical.

Issued in 2006, Dan Medical, P.C. v. New York Central Mutual Fire Insurance Company, 14 Misc. 3d 44 (N.Y. App. Term 2nd Dept. 2006) has a far reaching impact on the ability of No-Fault medical facilities to meet the business records exception to the hearsay rule (CPLR 4518). The Court in Dan Medical held that the affidavit submitted by the corporate officer of the plaintiff “failed to demonstrate that he possessed sufficient personal knowledge of plaintiff’s office practices and procedures so as to lay a foundation for the admission of the annexed documents as business records.” Dan Medical, 14 Misc. 3d at 46. Further, the Court held that “to the extent defendant issued denial of claim forms (NF-10s) or admitted receipt of plaintiff’s claim forms, such admissions did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form.” Dan Medical, 14 Misc. 3d at 47.

In Delta Diagnostic, the Court reaffirmed the holding of Dan Medical with respect to the failure of the plaintiff’s corporate officer having sufficient knowledge to lay a proper foundation to meet the business records exception to the hearsay rule. Delta Diagnostic, 18 Misc. 3d at 128A. However, the Court in Delta Diagnostic still found that plaintiff was entitled to summary judgment as to interest and attorney’s fees notwithstanding the deficiencies in plaintiff’s affidavit since the defendant’s litigation representative conceded in opposition to plaintiff’s motion for summary judgment that it received plaintiff’s claim; that it never issued payment on said claim within the 30-day claim determination period; and that the carrier subsequently issued payment in full on the claim after the action was commenced. The Appellate Term ordered that the action be remanded to the trial court to make a determination as to the amount of interest and attorney’s fees that the carrier was responsible for paying.

The Appellate Term’s decision in Delta Diagnostic is really about the amount of interest and attorney’s fees that are owed by a carrier after the carrier issues payment subsequent to the commencement of the action.

The Court’s decision in Delta Diagnostic explicitly upholds Dan Medical, wherein the Court held that plaintiff’s affidavit was insufficient to meet the business records exception to the hearsay rule. What Delta Diagnostic does stand for is that when a defendant submits an affidavit attesting to the fact that the carrier paid the claim in full after the action was commenced, summary judgment may be awarded to the plaintiff with respect to any interest and attorney’s fees.

Delta Diagnostics does not represent a “softening” of Dan Medical.

Michael A. Callinan, Esq., is a 2002 graduate of Hofstra University School of Law and an associate at Bruno, Gerbino & Soriano, LLP, located in Melville, New York.

« Back to BG&S in the News