Vista Surgical Supplies, Inc. v Statewide Ins. Co.
Decided on May 24, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-1281 K C.
Vista Surgical Supplies, Inc. a/a/o DWAYNE WEBB, Appellant,
Statewide Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered August 3, 2005. The order denied plaintiff's motion for summary judgment.
Order affirmed without costs.
In this action to recover assigned first-party no-fault benefits, plaintiff provider moved for summary judgment. In order to establish a prima facie entitlement to summary judgment, plaintiff was required to prove that it submitted the subject claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 ; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In support of its motion for summary judgment, plaintiff submitted an affidavit of one of its corporate officers who did not aver that he had personal knowledge of the mailing of the claim forms but merely stated that "proofs of mailings for the billing and documents sent to the examiner are in my possession." Although plaintiff did annex to the motion papers copies of two certified mail receipts from a Brooklyn post office postmarked July 3, 2002 and August 6, 2002, and two certified return receipt cards from a Hempstead post office postmarked July 8, 2002 and August 6, 2002, there is nothing in the record relating said receipts or cards to the instant claims. We note that plaintiff's attorney's affirmation, based on allegations by one who had no personal knowledge that the claims were actually mailed to defendant, is [*2]unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, the verification request letters annexed to defendant's opposition papers do not establish defendant's receipt of plaintiff's claims since there is likewise nothing in the record relating said verification requests to the instant claims. Since the record is devoid of any competent evidence establishing either plaintiff's mailing of the claims to defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ) or defendant's receipt of same, plaintiff did
not make the requisite showing to establish a prima facie entitlement to summary judgment. Accordingly, plaintiff's motion for summary judgment was properly denied.
Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 24, 2006