Amaze Med. Supply v Allstate Ins. Co.

[*1] Amaze Med. Supply v Allstate Ins. Co. 2004 NY Slip Op 50447(U) Decided on May 20, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 20, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-365 K C

AMAZE MEDICAL SUPPLY INC. a/a/o Igor Tsigelman, Appellant,

against

ALLSTATE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 13, 2003, as denied its motion for

summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In its moving papers, plaintiff argued that because
the defendant failed to timely deny its claim within the statutory 30-day period, it
was entitled to summary judgment as a matter of law. In order to establish a
prima facie entitlement to summary judgment, plaintiff was required to show that it
submitted a complete proof of claim to defendant which defendant neither paid nor denied within 30 days (see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v
Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The presumption that an addressee received an item by mail may be created by either
proof of actual mailing or proof of a standard office practice or procedure designed
to ensure that items are properly addressed and mailed (see Residential Holding
Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Tracy v William Penn Life Ins. [*2]
Co. of N.Y., 234 AD2d 745 [1996]; Pardo v Central Coop. Ins. Co., 223 AD2d 832 [1996]). Plaintiff attached to its moving papers a signed post office ledger with defendant's name which was date-stamped September 18, 2001. In addition, in his affidavit in support of plaintiff's motion, Mr. Bronsteyn (plaintiff's president) stated
that plaintiff mailed the bills to defendant on September 18, 2001. Thus, plaintiff
made out a prima facie case of its entitlement to summary judgment thereby
shifting the burden to the defendant to come forward with a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

In support of defendant's motion for summary judgment and in
opposition to plaintiff's motion, defendant's attorney merely argued that defendant's denial letter was timely since it was dated November 7, 2001 and stated therein
that defendant received plaintiff's claim on October 18, 2001. Since defendant's attorney lacked personal knowledge of the underlying facts, and defendant's
business records and standard office practices regarding mailings, his affirmation
was of no probative value (see Barton v County of Monroe, 92 AD2d 746 [1983]). Inasmuch as defendant failed to establish that a triable issue of fact exists, the
lower court should have granted plaintiff's motion for summary judgment. The
matter is remanded for the calculation of statutory interest and attorney's fees
pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: May 20, 2004