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This memorandum of law is drafted to address the issues pertinent to Plaintiff’s attempt to admit hearsay documents into evidence through the use of Defendant’s interrogatory responses. As discussed herein, Plaintiff’s (1) Must introduce a Verification of Treatment form into evidence if they cannot produce a witness with personal knowledge of the facts at issue in the case at bar and (2) Plaintiff’s cannot establish an adequate foundation for the admissibility of the Verification of Treatment form by the use of Defendant’s interrogatory answers.

NECCESSITY OF PROOF OF SERVICES RENDERED AND AMOUNTS OWED

“A proper proof of claim is mandated as a building block of a provider's prima facie case seeking reimbursement under New York State's No Fault Insurance Law. (See Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742, 774 N.Y.S.2d 564 [2nd Dept.2004]; A.B. Medical Services PLLC v. Lumbermens Mutual, 4 Misc.3d 86, 781 N.Y.S.2d 818 [App. Term 2nd & 11th 2004] ). Consequently, the courts require a copy of the proof of claims as documentary proof”. PDG Psychological, P.C. v. State Farm Ins. Co. 9 Misc.3d 172, 801 N.Y.S.2d 144, 2005 N.Y. Slip Op. 25258 (N.Y.City Civ.Ct.,2005) Since a presumption of medical necessity attaches only to the properly competed claim form. (Stephen Fogel Psychological, P.C. v. Progressive Casualty Ins. Co., 7 Misc.3d 18, 2004 N.Y. Slip Op 24527), unless a plaintiff intends to rely on an individual with personal knowledge of the facts at issue in this case, a signed Verification of Treatment Form must be received into evidence in order for plaintiff to establish the information necessary to a prove a proper proof of claim.

There is no divorcing the Verification of Treatment form from the information contained therein since it is the contents of the form, along with the physician’s verification, that provide a claimant with the right to recovery in the fist place. “An insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form. 11 NYCRR 65.15(d)(5).” As early as 2003 the Appellate Term clearly indicated that the quality and nature of the information contained in the NF-3 was fundamental to any consideration of whether a plaintiff has established a prima facie case. "written notice [of claim] required by section 65-2.4 ... shall be deemed to be satisfied by the insurer's receipt of a completed prescribed application for motor vehicle no-fault benefits" (11 NYCRR 65-3.3[d] ), that is, the approved claim forms or their functional equivalent (11 NYCRR 65-3.5[g] ). …. a properly completed claim form, which suffices on its face to establish the "particulars of the nature and extent of the injuries and treatment received and contemplated" (11 NYCRR 65-1.1), and the "proof of the fact and amount of loss sustained" (Insurance Law § 5106[a] ). Damadian Elmhurst vs. Liberty 2 Misc.3d 128(A), 784 N.Y.S.2d 919  (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 51700(U).

As it axiomatic that when a document is not in evidence, the contents thereof may not be presented to or considered by the trier of fact. People v. Walston,99 A.D.2d 847, 472 N.Y.S.2d 453, N.Y.A.D. 2 Dept., Feb 27, 1984  Belcher v. Kesten,36 A.D.2d 736, 320 N.Y.S.2d 610, N.Y.A.D. 2 Dept., Mar 15, 1971, it follows that w

ithout receipt into evidence of a Verification of Treatment Form, or its equivalent, there is no proof before the trier of fact of “the basis for the claim and the nature and amount of the services rendered and sum sought in acceptable form.” Comprehensive Mental Assessment & Medical Care v. Merchants & Businessmen’s Mutual Ins. Co., 196 Misc.2d 134, 762 N.Y.S.2d 794, 2003 N.Y. Slip Op. 23594 (Dist. Ct. Nassau Cty).

Without testimony on the question, or a Verification of Treatment form admitted into evidence, there is no proof before the trier of fact concerning the nature of the services provided, what amount is claimed as owed, who provided the services, whether the provider of services was an employee, owner or independent contractor of the plaintiff or even who the name of the patient. In short, nothing which “…which suffices on its face to establish the "particulars of the nature and extent of the injuries and treatment received and contemplated" (11 NYCRR 65-1.1), and the "proof of the fact and amount of loss sustained" (Insurance Law § 5106[a] ). Damadian Elmhurst, supra

As Judge Agate noted in Fifth Avenue Pain Control Center v. Allstate Insurance Company, 196 Misc.2d 801, 766 N.Y.S.2d 748, 2003 N.Y. Slip Op. 23686 (Civ. Ct. Queens Cty.)

A timely and proper notice of claim includes evidence that an insured assignor was treated for injuries sustained as a result of an automobile accident, and includes bills for treatment rendered by plaintiff with regard to those injuries.

This requirement of admissible evidence is no less stringently applied to motions for summary judgment.

In a motion for summary judgment the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in an admissible form to demonstrate the absence of any material issues of fact. (Metroscan Imaging v American Transit 12/10/99 N.Y.L.J. 27, (col. 5) quoting Alvarez v. Prospect Hosp., 68 NY2d 320 [1987]).

INTEROGATORY RESPONSES AND EVIDENTIARY FOUNDATIONS

Plaintiff’s are frequently heard to mischaracterize the nature and function of Interrogatory responses, seeming to indicate that merely because a document is attached to an Interrogatory response the document becomes admissible.

That tortured misunderstanding ignores the clear use to which Interrogatories may be put as described by the Civ. Prac. Law & Rules, which specifically provide at CPLR §§ 3131 that interrogatory “answers may be used to the same extent as the depositions of a party”.

The obvious import is that Interrogatory responses are subject to the same uses and same limitations as Deposition testimony.

As it is axiomatic that documents produced at a Deposition are not admissible unless a proper evidentiary foundation is laid, it is likewise axiomatic that documents produced by an Interrogatory are not admissible unless a proper evidentiary foundation is made.

Without belaboring the obvious, it is elemental that appropriate foundation questions must be put to witnesses at a deposition if their deposition testimony is to be used to establish an evidentiary foundation for receipt of a hearsay document at trial. See for example “Fanek v City of Yonkers 287 A.D.2d 683, 732 N.Y.S.2d 99,  (App. Div. 2nd Dept 1981) “The plaintiffs contend that the Supreme Court erred in refusing to permit them to use the deposition testimony of the defendant's employee to establish a foundation for the admission of a certain report as a business record” and Gomex v Peter Scalamandre & Sons Inc. 85 A.D.2d 594, 444 N.Y.S.2d 706 (App. Div. 2nd Dept 1981) “[A]t trial the court refused admission into evidence of a written statement…The denial of such admissibility was proper, therefore, since plaintiffs' counsel had full opportunity to lay a proper foundation at the deposition for the admissibility of such written statement, but failed to do so.

FOUNDATIONS QUALIFYING THE ADMISSIBILITY OF A BUSINESS RECORD

When a party attempts to lay a foundation for receipt of a document through a witness other than the one who prepared it, it is well settled that the foundation requirements are different from those anticipated by CPLR § 4518, which codifies the Business Record exception to the hearsay rule. Advanced Medical Rehabilitation v Travelers 2 Misc 3d 1004, 2004

In the first instance, it is settled beyond question that mere inclusion of the document in the files of the recipient is insufficient to establish the admissibility of the document. “[M]ere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient”. Standard Textile Co. v National Equipment Rental 80 AD2d 911. Such a recognition is critical because, in fact, this is all that plaintiff’s are establishing through their resort to defendant’s Interrogatory response.

A thorough discussion of the Business Record exception to the hearsay rule and the foundation requirements of ‘third party’ records is found in Medical Expertise v Trumbull Insurance, 765 N.Y.S.2d 171, 196 Misc.2d 389, 2003 N.Y. Slip Op. 23623 (Civ. Ct., Queens Cty., J. Siegal May 6, 2003).

Judge Seigal relied here in large part on the Court of Appeals decision that settled this question,  People v Cratsley 86 N.Y2.d 81. In Cratsley, the Court held that a sufficient showing of reliability and hence admissibility could be made if it was established that the third party records were incorporated into those of the possessor, the third party records were relied on by the possessor, the possessor had adequate knowledge regarding the manner in which the records were produced and the source of the information contained therein.

Plaintiffs do not attempt such a showing and their interrogatory questions do not attempt to address this evidentiary foundation. . They are content, instead, to merely demonstrate that the document has been ‘retained in the regular course of businesses by the Defendant. As noted above, the Appellate Division in Standard Textile has specifically rejected this showing as sufficient to establish the admissibility of a hearsay document.

Furthermore, even if Plaintiff were to attempt to satisfy the full evidentiary foundation requirements, it is clear that they would founder on the defendant’s lack of knowledge of the source of the information contained in a Verification of Treatment form. . Advanced Medical Rehabilitation v Travelers supra.

CONCLUSION

In order for plaintiff’s to establish their prima facie case they must establish, in part, proof of the services rendered, the amounts owed and the identity of the parties. Absent a witness to provide testimony based on personal knowledge, this showing may be made, in part, through the introduction into evidence of a NF-3 Verification of Treatment Form. Whereas CPLR §§ 3131 provides that interrogatory “answers may be used to the same extent as the depositions of a party”, documents sought to be introduced through interrogatory responses must be qualified in the same fashion as documents produced during deposition proceedings.

Since all that Plaintiff’s can establish through the interrogatory response is the “[M]ere filing of papers received from other entities” Standard Textile Co. v National Equipment Rental 80 AD2d 911, they have failed to establish a proper evidentiary foundation for the admissibility of the Verification of Treatment form. People v Cratsley 86 NY2d 81.