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

[*1] Impulse Chiropractic P.C. v Travelers Ins. Co. 2006 NY Slip Op 52469(U) [14 Misc 3d 127(A)] Decided on December 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1861 K C.

Impulse Chiropractic P.C. A/A/O YAN ROYTMAN, Appellant,

against

Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 9, 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 failed to establish a prima facie entitlement to summary judgment since it did not adequately establish that it submitted its claim forms 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]). A plaintiff ordinarily establishes the "submission" of the claim forms by demonstrating proof of proper mailing, which gives rise to the presumption that the claim forms were received by the addressee. The presumption may be created either by proof of actual mailing, or by 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]). Here, the affidavit of plaintiff's corporate officer was insufficient to establish that plaintiff mailed the claims to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Moreover, plaintiff's attorney's affirmation was not based on personal knowledge that the claims were actually mailed to defendants and, as such, has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th [*2]Jud Dists 2004]). Furthermore, plaintiff's attempt to demonstrate defendant's receipt of the claims in question by attaching to its moving papers two delay letters from defendant is unavailing since said letters did not specifically refer to the claims at issue in that they did not set forth the amounts of the claims. Accordingly, since plaintiff failed
to establish its prima facie entitlement to summary judgment, the lower court properly denied its motion.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 12, 2006