Impulse Chiropractic, P.C. v Travelers Ins. Co.

[*1] Impulse Chiropractic, P.C. v Travelers Ins. Co. 2006 NY Slip Op 52371(U) [14 Misc 3d 126(A)] Decided on December 8, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2005-1789 K C. NO. 2005-1789 K C

IMPULSE CHIROPRACTIC, P.C. a/a/o ROMAN MANTACHEV, Appellant,

against

TRAVELERS INSURANCE COMPANY, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered August 31, 2005. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a plaintiff provider establishes a prima facie case by presenting proof that it submitted statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits is overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also 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 the
instant case, the affidavit executed by plaintiff's corporate officer failed to establish submission of the claim form. Plaintiff's assertion that defendant's letter, annexed to the moving papers, acknowledging receipt of a claim constitutes an admission that the subject claim form was received, is without merit. Inasmuch as the letter does not set forth the amount sought by the claim form which defendant received, plaintiff did not establish its prima facie entitlement to summary judgment since it did not adequately establish that it submitted the subject claim form to defendant (see A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the burden never shifted to defendant (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Liquore v Tri-Arc Mfg. Co., 32 AD3d 905 [2006]). [*2]

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: December 8, 2006