Socrates Med. Health, P.C. v Motor Veh. Acc. Indem. Corp.

[*1] Socrates Med. Health, P.C. v Motor Veh. Acc. Indem. Corp. 2010 NY Slip Op 51606(U) [28 Misc 3d 141(A)] Decided on September 17, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 17, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570707/09.

Socrates Medical Health, P.C. a/a/o Steve Eleutiza, Plaintiff-Respondent,

against

Motor Vehicle Accident Indemnification Corp., Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered December 9, 2008, which, upon a prior order granting summary judgment, awarded plaintiff damages in the principal sum of $878.67.

Per Curiam.

Judgment (Ben R. Barbato, J.), entered December 9, 2008, affirmed, without costs.

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing form had been mailed and received, and that payment of no-fault benefits was overdue (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004], lv denied 4 NY3d 705 [2005]). We note in this connection that the affidavit of plaintiff's employee attesting to plaintiff's standard office mailing procedures created a presumption of mailing of the subject claim, and, in any event, defendant acknowledged receipt of the claim (see Fair Price Med. Supply Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]). In opposition, defendant, which bore the burden of proving its lack of coverage defense (see Matter of MVAIC v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]), failed to raise a triable issue on this point, since it offered no competent evidence showing that the plaintiff's assignor's loss arose from the use or operation of an uninsured motor vehicle (see Insurance Law § 5221[b]).

We reject defendant's contention that, pursuant to Insurance Law § 5225, it is exempt from paying plaintiff "statutory interest, statutory attorneys' fees and costs," since the plain language of that statute only exempts defendant from paying certain "taxes and fees" imposed by state and local governments. Defendant's remaining contentions are unpreserved for appellate review, and, in any event, are without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: September 17, 2010