Bajaj v General Assur., 2007 NYSlipOp 27487 (App. Term 2d)
In the instant case, the admissions sought by plaintiff in the notice to admit were proper [*3]and, in the absence of a response, the court below correctly deemed the genuineness of the claim denial form to have been admitted. However, to the extent that defendant may have admitted, pursuant to CPLR 3123, the genuineness of the claim denial form, it did not thereby concede the admissibility of the provider’s claim form as a business record, pursuant to CPLR 4518, so as to constitute proof of the “act, transaction, occurrence or event” set forth therein, including, but not limited to, the dates of service, the services rendered and the charges therefor (see Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U], supra). Similarly, even had defendant admitted, pursuant to CPLR 3123, the genuineness of the provider’s claim form which it received, this would not concede the facts set forth on the claim form with respect to the dates of service, the services rendered and the charges therefor. The admission would serve only to acknowledge that this was the claim form that it received.
Thus, it remained plaintiff’s burden to proffer evidence in admissible form, i.e., by introducing into evidence the claim form in question by, inter alia, calling a witness to lay a foundation for the admissibility of the claim form as a business record, which plaintiff failed to do (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, supra). Accordingly, in light of plaintiff’s failure to establish the admissibility of its claim form as a business record, plaintiff did not establish a prima facie case and defendant was entitled to judgment dismissing the complaint.