Comprehensive Mental v Lumbermens Mut. Ins. Co.

[*1] Comprehensive Mental v Lumbermens Mut. Ins. Co. 2004 NY Slip Op 50745(U) Decided on July 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:DECIDED July 1, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2003-1078 N C

COMPREHENSIVE MENTAL a/a/o JOSEPH BOSTIC, Respondent,

against

LUMBERMENS MUTUAL INSURANCE COMPANY, Appellant.

Appeal by defendant from an order of the District Court, Nassau County

(M. Massell, J.), dated April 14, 2003, denying its motion for summary judgment.

Order unanimously modified by granting defendant's motion to the extent of awarding it partial summary judgment dismissing the complaint as to $1,236.99 of the principal sum sought; as so modified, affirmed without costs.

In this action to recover $1,340.30 in assigned first-party no-fault benefits, for $1,236.99 in health services provided December 5, 2001 and $103.31 in such services provided December 19, 2001, defendant moved for summary judgment dismissing the
complaint on the ground that plaintiff's claim form was submitted more than 180 days after the services were provided (11 NYCRR 65.12 [e]; Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co., 232 AD2d 454 [1996]). Given defendant's acknowledgment that the claim form was received on June 11, 2002, i.e., within 180 days of December 19, 2001, the court properly denied the motion as to the December 19, 2001 benefits, having correctly determined that such claim was necessarily timely submitted.

However, the claim for the benefits rendered December 5, 2001 was not received within 180 days, and plaintiff failed to prove that it mailed said claim within the statutory time. Proof of proper mailing requires evidence of "actual mailing or . . . a standard office practice or procedure [*2]designed to ensure that items are properly addressed and mailed" (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see also Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998]; Amaze Med. Supply Inc. v Allstate Ins. Co., 2 Misc 3d 138 [A], 2004 NY Slip Op 50264 [U]; S & M Supply Inc. v Geico Ins., 2003 NY Slip Op 51192 [U]). Plaintiff's proof, the affidavit of its "manager," made no reference to plaintiff's standard office mailing practices or [*3]
procedures, and the bare averment therein that "[p]laintiff/provider mailed all bills to defendant . . . within the statutory 180 day time period" does not establish the basis of her personal knowledge of the mailing (S & M Supply Inc. v Geico Ins., supra; Amaze Med. Supply Inc. v Colonial Penn Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 50471 [U] [App Term, 2d & 11th Jud Dists]; Jul & Pol Corp. v American Tr. Ins. Co., 2003 NY Slip Op 51153 [U]).
Decision Date: July 01, 2004