Was this a dare or an oversight

    On December 18, 2013 the Appellate Division, Second Department decided Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.2013 NY Slip Op 08430 [2nd Dept. 2013].  In short, the Appellate Division held that a no-fault Plaintiff was not required to establish that its bills was a business record under CPLR 4518 to prove its prima facie case.

    On January 24, 2014, in Horton Med., P.C. v Liberty Mut. Ins. Co., 2014 NY Slip Op 50116(U) [App. Term, 2nd, 11th & 13th Jud. Dists. 2014] the Appelalte Term decided an appeal where the plaintiff's motion was unopposed.  The Appellate Term held "Upon a review of the record, we are in agreement with the Civil Court's determination that the affidavit by plaintiffs' billing manager in support of plaintiffs' motion for summary judgment failed to comply with CPLR 4518 (see Dan Med. P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006])"

    Of note, the reasoning in Dan Med was rejected by the Appelalte Division in Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.

    On February 5, 2014, the Appellate Division decided New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 2014 NY Slip Op 00639 [2nd Dept. 2014]. It held: "A medical provider is not required, as part of its prima facie showing, to demonstrate the admissibility of its billing records or to prove the truth of their content under the business records exception to the hearsay rule (see CPLR 4518[a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.,AD3d, 2013 NY Slip Op 08430,  [2d Dept 2013])."

    While the Horton decsion could have been an oversight, it also could have been an attempt to somehow distinguish Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co..  But if that were the case New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 2014 NY Slip Op 00639 [2nd Dept. 2014] put that to bed.  But–and im not saying that this is the case–what if the Appellate Term (or any court for that matter) refused to follow precedent?  What is the remedy?  Recusal?  Disband the Appellate Term–the Appellate Term would not exist but for the Appellate Division's say so.  That, however, is not a remedy for a party.  Should a party request recusal of an entire Appellate Term?  I haven't seen that happen oustide of pro se cases.

 

 

 

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