In my Feb. 13, 2014, No-Fault Insurance Law Wrap-Up column,1 I reported on Viviane Etienne Medical Care v. Country-Wide Ins. Co.2 and the Appellate Division’s holding as to what is, and what is not, a no-fault plaintiff’s prima facie burden. The Court of Appeals subsequently granted leave to appeal, and on June 10, 2015, issued its decision, affirming, by a majority, the Appellate Division’s decision.3 A recap of the Appellate Division’s decision follows.

The plaintiff in that case, a medical provider office, moved for summary judgment, annexing to its motion copies of the bills in dispute and an affidavit of its third-party biller who averred that he prepared and mailed the plaintiff’s bills to the defendant insurer. The civil court denied plaintiff’s motion, finding plaintiff failed to satisfy its prima facie burden, and the plaintiff appealed. Citing Art of Healing,4 the Appellate Term affirmed, finding that plaintiff’s third-party biller “failed to demonstrate that he had personal knowledge of the plaintiff’s practices and procedures and that he was competent to testify about those practices and procedures.”5 Thus, the Appellate Term concluded, since the plaintiff failed to lay the proper business record foundation to admit the billing forms in evidence, it failed to meet its prima facie burden, and its motion was therefore properly denied.

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