| Matter of Carothers v GEICO Indem. Co. |
| 2010 NY Slip Op 09256 [79 AD3d 864] |
| December 14, 2010 |
| Appellate Division, Second Department |
| In the Matter of Andrew Carothers, M.D., P.C.,Appellant, v GEICO Indemnity Company, Respondent. |
—[*1] Teresa M. Spina, Woodbury, N.Y. (P. Stephanie Estevez of counsel), for respondent.
In an action to recover no-fault medical payments under certain insurance contracts, the plaintiffappeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second,Eleventh, and Thirteenth Judicial Districts, dated April 14, 2009, which reversed a judgment of the CivilCourt of the City of New York, Kings County (Graham, J.), entered August 2, 2007, which, after anonjury trial, awarded the plaintiff the principal sum of $4,463.17, and dismissed the complaint.
Ordered that the order dated April 14, 2009, is affirmed, with costs.
The testimony of an employee of the company that handled the plaintiff's medical billing wasinsufficient to lay a foundation for the admission of the claim forms under the business records exceptionof the hearsay rule (see Art of HealingMedicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]). Such recordswere inadmissible because the billing company did not create the records and there was no showingthat its employee was familiar with the particular record-keeping procedures of the plaintiff (seeWest Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950 [2002]). Further, althougha proper foundation can be established by a recipient of records who does not have personalknowledge of the maker's business practices and procedures, there must still be a showing that therecipient either incorporated the records into its own records or relied upon the records in itsday-to-day operations (see People v A & S DiSalvo Co., 284 AD2d 547, 548 [2001];Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727 [1986]). Here, the billingcompany's mere printing and mailing of the documents to the insurer did not establish that thedocuments were incorporated into its records or that it relied upon the records in its regular course ofbusiness (see Lodato v Greyhawk N. Am.,LLC, 39 AD3d 494,495 [2007]). Since the subject documents were inadmissible, the plaintifffailed to establish its prima facie case, and the Appellate Term properly reversed the judgment in theplaintiff's favor.
The plaintiff's remaining contention is unpreserved for appellate review. Rivera, J.P., Dillon,Angiolillo and Austin, JJ., concur.