Opinion
Index No.: 150235/09
03-04-2014
CALVIN ALFORD, Plaintff, v. FIDUCIARY INSURANCE COMPANY OF AMERICA, Defendant,
, SPECIAL REFEREE:
By Order dated July 10, 2013, the Honorable Doris Ling-Cohan referred this matter to the Special Referee Part for a Special Referee to hear and determine the amount of no-fault insurance benefits due to Plaintiff Calvin Alford ("Plaintiff"). Justice Ling-Cohan's order had otherwise granted Plaintiff's motion for summary judgment on the question of Defendant Fiduciary Insurance Company of America's ("Defendant") duty to provide benefits and denied Defendant's cross-motion to dismiss the complaint (the "July 10, 2013 Order").
This matter was assigned to me on September 25, 2013. The case was conferenced on that date and adjourned for a hearing date of October 17, 2013. Plaintiff was represented by Elina Monroe, Esq. of Galvano & Xanthakis (the "G&X Firm"). Defendant was represented by Mark J. Agin, Esq. at the initial conference and thereafter at the hearing and in subsequent matters by Antonia Bortone, Esq., both of Brand, Glick & Brand P.C.
References to the transcript of the October 17, 2013 hearing will be in the form of "Tr. _".
Monroe adduced the testimony of Plaintiff on direct examination and offered five exhibits: a February 19, 2009 ambulance bill (Pl. Ex. 1); a June 13, 2009 bill from the emergency room at Montefiore Hospital ("Montefiore") (Pl. Ex. 2); an insurance claim form for an MRI examination of Plaintiff dated June 19, 2009 (Pl. Ex. 3); a letter dated April 4, 2013 from the G&X Firm to Atlantic Imaging Group, LLC ("Atlantic") attaching a copy of a check for $800 (Pl. Ex. 4); and, an undated spreadsheet printout showing services performed by Back & Body Medical ("B&BM") from June 11, 2009 through February 19, 2010 (Pl. Ex. 5). Defendant did not offer any evidence at the hearing.
The first two exhibits were entered into evidence without objection. Plaintiff's Exhibit 3 was objected to but provisionally admitted into evidence subject the parties' post-trial submissions. I sustained objections to Plaintiff's Exhibits 4-5, which are also addressed in the parties post-trial submissions. These exhibits are discussed below at pages 11-13.
The parties ordered the transcript from the hearing.
After the hearing, I directed both sides to file post-hearing briefs on the substantive legal and evidentiary issues presented. I received these papers on November 21, 2013. In addition to legal argument, Plaintiff's submission enclosed exhibits including an affidavit of Shan Sivendra, M.D. of B&BM, sworn to on November 19, 2013; a second copy of Plaintiff's Exhibit 5 described as a "ledger" of services that B&BM performed; a series of denials of payment from Defendant sent to B&BM; and a collection of invoices for legal work that the G&X firm performed for Plaintiff (Monroe Aff. Ex. A-C, F). Defendant objected to inclusion of these belatedly-submitted exhibits via email on the date these submissions were received. I address the validity of the items attached to the post-trial submission at pages 10-11 below.
Plaintiff's initial post-trial submission is an Affirmation of Ms. Monroe with attached exhibits ("Monroe Aff.") Defendant's submission is an Affirmation of Ms. Bortone with exhibits ("Bortone Aff.")
Plaintiff's submission also contained a copy of the July 10, 2013 Order and the transcript of the proceedings before me (Bortone Aff. Ex. D-E).
Thereafter, I informed the parties in a conference call conducted on November 25, 2013 that I would require a second post-hearing brief from each side to address the issue of these additional submissions from Plaintiff, as well as other arguments in the parties' initial papers. In advance of those submissions, I directed the parties to appear for a settlement conference. Efforts to settle the case ultimately failed, and the parties filed their supplemental post-hearing papers on February 3, 2014, at which time the case was fully submitted.
These will be referred to as "Monroe Aff. II" and "Bortone Aff. II" respectively.
In addition to the testimony and exhibits presented at the hearing, I have taken judicial notice of the uncontroverted matters that are contained in the county clerk file and on the court's computerized records. (Khatibi v. Weill, 8 AD3d 485, 485-86 [2d Dept 2004]).
BACKGROUND
As is detailed in the July 10, 2013 Order, the instant matter involves injuries Plaintiff, a pedestrian, suffered in a car accident in February 2009. An ambulance took Plaintiff to Montefiore where he received treatment for his injuries. Plaintiff and his counsel attempted to learn the identity of the vehicle that struck him, and, although initially unsuccessful, ultimately filed a timely application for benefits with the Motor Vehicle Accident Indemnification Corporation ("MVAIC"). MVAIC responded to Plaintiff's application on June 1, 2009, stating that the vehicle that struck Plaintiff was insured by Defendant.
Plaintiff used this information to file a no-fault application with Defendant, which was denied on June 3, 2009. After written and oral requests for reconsideration were unsuccessful, Plaintiff commenced this action on December 10, 2009. Plaintiff's claims against Defendant culminated in the July 10, 2013 Order, granting Plaintiff's motion for summary judgment, denying Defendant's cross-motion to dismiss and severing the issue of no-fault insurance benefits for a Special Referee to hear and determine (July 10, 2013 Order at 1-2, 4-5).
THE NO-FAULT BENEFITS HEARING
Plaintiff, the only witness at the hearing, testified that he was involved in an accident as a pedestrian on February 19, 2009. He did not own a vehicle at the time. He did not know what vehicle struck him in the accident, and it was only later with the assistance of counsel, that he could identify Defendant as the insurance carrier for that vehicle (Tr. 6-7).
Plaintiff was knocked to the ground in the accident. He was taken by ambulance to Montefiore. As a result of his injuries, Plaintiff received several months of treatment for spinal and knee injuries (Tr. 8). Plaintiff testified that he received a bill for $559 from the ambulance company. Plaintiff gave the bill, which remains unpaid, to his attorney (Pl. Ex. 1; Tr. 1112). Plaintiff testified he received treatment at Montefiore on February 19, 2009 and March 23, 2009. He received a bill from Montefiore for $360. This bill also remains unpaid (Tr. 13-14; Pl. Ex. 2). Both bills were received into evidence without objection (Tr. 11, 14).
Referring to the document marked for identification as Plaintiff's Exhibit 3, Plaintiff testified that because he had no medical coverage, he could not get any treatment elsewhere. Later, with the assistance of his counsel, he received treatment at B&BM at 133 East 58th Street in Manhattan and also x-rays and an MRI examination at Garden State Imaging in Elizabeth, New Jersey (Tr. 9, 15). Plaintiff also testified, based on review of Plaintiff's Exhibit 3, that the total amount he was charged for these services on June 19, 2009, was $1,050 (Tr. 15).
On voir dire regarding Plaintiff's Exhibit 3, Plaintiff indicated that he did not recall signing the form. He did not complete the form personally - instead it was prepared by someone at Garden State Imaging. He did not see an employee of that company prepare this form on their computers, and, although he provided information for the form, he did not input the information himself (Tr. 16-17). Defendant thereafter objected to admission of Plaintiff's Exhibit 3 into evidence. I initially did not rule on the objection and instead permitted Plaintiff, through counsel, to try to lay a foundation through reference to the document identified as Plaintiff's Exhibit 4 (Tr. 17).
After reviewing that document, Plaintiff testified that Plaintiff's Exhibit 4 reflected an $800 payment that he made to Atlantic, which he understood to be the provider of services for the MRI (Tr. 17-18) . He further testified that he had to make this payment out of his own pocket (Tr. 18).
On voir dire of this exhibit, Plaintiff stated that he understood through his counsel that Atlantic and Garden State Imaging were the same company. He stated that his counsel had a copy of the underlying check - he did not keep one (Tr. 19-20). Following renewed objection from Defendant and further colloquy, I provisionally allowed Plaintiff's Exhibit 3 into evidence, although permitting Defendant to provide authority in post-trial submissions to demonstrate that this document should be inadmissible (Tr. 21-24). Defendant also objected to admission of Plaintiff's Exhibit 4, and so I allowed further testimony about that document before ruling.
On continued questioning about Plaintiff's Exhibit 4, Plaintiff testified that he wrote a check from his personal account for $800 to Atlantic for medical services rendered there. Plaintiff also testified, however, that he was aware of an $800 payment from his counsel's office for that same purpose. Ultimately, he revised his testimony to indicate that the only such payment came from his counsel's office as was reflected in Plaintiff's Exhibit 4. He testified that he had authorized this payment, by the G&X Firm, on his behalf (Tr. 25-26).
In further voir dire about this exhibit, Plaintiff did not indicate that he had first-hand knowledge that Atlantic had been paid. Instead, he testified only that he had no reason to think Atlantic had not been paid and that the check was signed (Tr. 27). Incredibly, he then testified that he had signed the check, only to immediately reverse himself on Defendant's counsel's follow up question and indicate that he had not signed it (Tr. 27). He also admitted that he had never had any conversation with Atlantic about payment (Tr. 28). After renewed objection and further colloquy, I gave Plaintiff's counsel one final opportunity to establish admissibility of Plaintiff's Exhibit 4.
Plaintiff then testified that he was not aware of any other payment due to Atlantic for the services provided to him and that he had not received any other bills or requests for payment from either Atlantic or Garden State Imaging (Tr. 30). I then sustained Defendant's renewed objection to this exhibit, giving Plaintiff the opportunity to submit authority in support of the exhibit's admissibility in the post-trial memorandum (Id.)
Plaintiff next testified to his treatment at B&BM. He explained that he received treatment at that provider for eight or nine months, once per week, commencing in June of 2009. At least three individuals - Dr. Shan Sivendra, Caliwanagan Mesa, and David Perna - provided services to him at B&BM (Tr. 31-32). Referring to what was marked for identification as Plaintiff's Exhibit 5, Plaintiff stated that the first column of this spreadsheet showed the dates he received treatment at B&BM and that elsewhere the spreadsheet indicated the types of treatment he received. He added that the last page reflected the amount due for services rendered which, after an adjustment noted on the spreadsheet, was $14,060 (Tr. 33-34).
On voir dire of this exhibit, Plaintiff admitted that he did not work for B&BM and was not affiliated with them in any way. He did not prepare Plaintiff's Exhibit 5 and did not provide the information in the column labeled "procedure" to B&BM. He added that he did not receive the document at his house and did not know who prepared it (Tr. 34-35). I sustained Defendant's objection to admission of the document into evidence (Tr. 35-36).
Plaintiff concluded his direct testimony by reiterating that he had been billed $559 by an ambulance company, $360 by Montefiore, and $14,060 by B&BM and that none of those bills had been paid. Additionally, he stated that Atlantic had been paid $800 on his behalf for the MRI it performed on him. Thus, in total, he stated he was seeking $15,779 in no-fault insurance benefits (Tr. 36-37).
Defendant briefly cross-examined Plaintiff. He admitted that he did not have first-hand knowledge of medical billing and had never been trained in that field. Although he received more than one kind of treatment, he did not know the names for the types of treatment he received at B&BM. He also admitted that his knowledge of the amount that B&BM had billed him was through his attorney (Tr. 39-40). He testified that he never saw any bills or had conversations with B&BM about billing (Tr. 40-41).
On re-direct, Plaintiff testified that he received treatment for eight months at B&BM and that the treatment was never paid for. He said he understood that the treatment would either be paid for by him or by a carrier found liable for coverage. He said that he had not made any payments to B&BM and that he was not aware of any payments being made on his behalf. He said he understood that there is a balance due to B&BM (Tr. 41-42). Finally, on re-cross, Plaintiff admitted that he could not be sure that B&BM had not been paid, but that to his knowledge the company had not been paid (Tr. 43).
ANALYSIS
Initially, I conclude that although I can consider the testimony at the hearing and the admissible evidence adduced there, I cannot consider the new material that Plaintiff attached to counsel's initial post-trial submission (Monroe Aff. Ex. A, C). This belated material, which could have been, but was not presented at the hearing, is dehors the record and must be excluded (Hartle v. Cobain, 228 AD2d 756, 757 [3rd Dept 1996] [improper for hearing officer to consider evidence not in record evidence but instead drawn from post-trial memorandum]); see also Dovin Constr. Inc. v. Raimondo & Sons Constr. Co., Inc., 29 AD3d 364 [1st Dept 2006] [improper to consider facts dehors the record on appeal]).
Because Exhibit B to that affirmation is a copy of the document that was marked for identification at the hearing as Plaintiff's Exhibit 5, I will consider that document to the extent of finalizing my ruling that sustained Defendant's objection to its admission (see pages 11-13 below).
Plaintiff successfully admitted into evidence (and Defendant did not object to), bills that Plaintiff received from the ambulance company (Pl. Ex. 1) and Montefiore (Pl. Ex. 2) for $559 and $360 respectively. This is sufficient to meet Plaintiff's burden to show entitlement to these $919 in no-fault benefits.
At the hearing, I provisionally admitted Plaintiff's Exhibit 3 into evidence - a document entitled "Health Insurance Claim Form" purporting to show the charges that Plaintiff incurred for his MRI exam at Atlantic. I gave Defendant the opportunity to submit case law in post-trial briefing arguing that I should, instead, have rejected that exhibit (Tr. 21-24). I also gave Plaintiff an opportunity to respond. I reviewed these submissions and the case law they cited and I now change my initial ruling and deem Plaintiff's Exhibit 3 inadmissible.
Plaintiff did not establish a sufficient foundation to fit within the business record exception to the hearsay rule (CPLR 4518; Babikian v. Nikki Midtown, LLC, 60 AD3d 470, 471-472 [1st Dept 2009] [affiant's testimony lacking first-hand knowledge insufficient to authenticate documents as business records] Dan Medical P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc3d 44, 46-47 [App Term 2d & 11th Jud Dist 2006]). As Defendant correctly notes, Plaintiff did not testify at any time to personal knowledge of Atlantic's billing practices and procedures - a necessary step to establish admissibility of a medical record in this way. At most, Plaintiff testified that the form was filled out by staff at Garden State Imaging on their computers but that he did not see them do so (Tr. 16-17). This falls well short of even the affidavit from a corporate representative of the medical practice that the Appellate Term found insufficient to establish a foundation for a medical record (Dan Medical, 14 Misc3d at 46-47; cf. Devonshire Surgical Facility v. AIU Ins. Co., 15 Misc3d 1138(A)[Civ Ct NY County 2007] [affidavit of business manager sufficient to establish foundation]).
Plaintiff, in trying to distinguish Dan Medical, notes that there a medical provider was seeking assigned benefits rather than the underlying patient (Monroe Aff. II ¶ 18). I find this to be a distinction without a difference. To be sure, Dan Medical also arose in the context of the medical provider's unsuccessful summary judgment motion. The burden on a medical provider assignee to obtain summary judgment set forth in Dan Medical has apparently changed since the hearing in this case (see e.g. Vivianne Etienne Medical Care v. Country-Wide Ins., _ AD3d _, 977 NYS2d 292 [2d Dept 2013]) but that is not at issue here. The evidentiary principles about establishing a foundation for admissibility of an exhibit, for which Defendant relies on Dan Medical here, is still good law.
For similar reasons, I adhere to my prior ruling on Plaintiff's Exhibit 5, the spreadsheet purporting to show Plaintiff's medical expenses incurred at B&BM (Pl. Ex. 5; Tr. 35-36). Here too, Plaintiff failed to establish anything close to the necessary personal knowledge of B&BM's billing practices and procedures, and did not lay an appropriate foundation through any other means.
Because I cannot consider the belated affidavit of Dr. Sivendra (Monroe Aff. Ex. A), I make no assessment of whether the contents of that affidavit would have been sufficient to lay an appropriate foundation for Plaintiff's Exhibit 5.
I also adhere to my prior ruling deeming Plaintiff's Exhibit 4 inadmissible as to which Plaintiff does not offer any serious challenge in post-trial submissions. The closest Plaintiff came to establishing admissibility of this exhibit came in counsel's colloquy (Tr. 21-22). Counsel's argument, however, is not evidence and cannot bridge the gap where a foundation is lacking. Under a totality of the circumstances, I find Plaintiff's testimony wholly inadequate to authenticate this exhibit and there is no other means in the record to do so.
Even without admissible documentary evidence, Plaintiff makes much of his testimony at the hearing purporting to establish the amount of benefits he seeks here. But I cannot allow Plaintiff to establish the amount of benefits he is due through his testimony either. First, I conclude that Plaintiff has a strong interest in the outcome of the proceeding - and as an interested witness his credibility is already suspect (Lowenstein v. Normandy Group, LLC, 51 AD3d 517 [1st Dept 2008]). Second, Plaintiff repeatedly changed his testimony about certain exhibits, showing a significant amount of confusion about basic facts such as who signed and sent checks for the relevant payments (e.g., Tr. 25-27). Finally, Plaintiff demonstrated significant reliance on his counsel when testifying about key facts in the case (e.g., Tr. 19, 40, 44) rather than having personal knowledge. Thus, assuming that Plaintiff's testimony standing alone could ever be sufficient to establish his entitlement to a specific level of benefits, I cannot credit his testimony to do so here.
In sum, it is clear from the July 10, 2013 Order and a few credible portions of Plaintiff's testimony based on his personal knowledge that he was injured as a pedestrian in a car accident and that he was treated over many months at several providers for his injuries. But he has failed to offer admissible evidence sufficient to establish the amounts he was billed for most of those services. For the reasons stated above, I am reluctantly constrained to conclude that Plaintiff has shown entitlement to a total of only $919 in no-fault insurance benefits from Defendant.
Finally, for the first time in the initial post-trial submission, Plaintiff seeks $20,757.20 in attorneys' fees, costs and disbursements for this proceeding, supported by invoices purportedly generated by Monroe and her firm in pursuing this action on Plaintiff's behalf (Monroe Aff. ¶¶ 17-18; Ex. F). Plaintiff also seeks interest on his benefits at the rate of two percent per month from December, 2009 (Monroe Aff. ¶¶ 12-13; Monroe Aff. II ¶ 20 [citing 11 NYCRR 65.15(h)]).
In deciding this matter, I am limited to the scope of the reference sent to me by Justice Ling-Cohan (BDP Int'l Fin. Corp. v. Castillo, 55 AD3d 451, 452 [1st Dept 2008]; Matter of PMC Computer Corp., 38 AD3d 402, 403 [1st Dept 2007]). As the July 10, 2013 Order is devoid of any mention of attorneys' fees or interest, much less a reference to me to determine those issues, I am constrained to deny this relief. Plaintiff may well have the right to either or both of these items, but if so, it lies elsewhere. Accordingly, the claims for interest and attorneys' fees are denied without prejudice to renew those claims before Justice Ling-Cohan.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Plaintiff is entitled to $919 in no-fault benefits.
The Clerk is directed to enter judgment accordingly.
Plaintiff is further directed to contact the Clerk of the Special Referee Part by no later than April 1, 2014 to make arrangements to pick up the original exhibits from this hearing, after which date they will be discarded.
___________________
JEREMY R. FEINBERG
Special Referee