Medcare Supply, Inc. v Farmers New Century Ins. Co.

[*1] Medcare Supply, Inc. v Farmers New Century Ins. Co. 2014 NY Slip Op 51752(U) Decided on December 15, 2014 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, Shulman, Hunter, Jr., JJ.
570173/14

Medcare Supply, Inc., a/a/o Tristan Hinds, Plaintiff-Appellant, -

against

Farmers New Century Ins. Co. Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered April 15, 2013, which granted defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Jennifer G. Schecter, J.), entered April 15, 2013, reversed, with $10 costs, motion denied and complaint reinstated.

The action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal. The defendant insurer failed to establish, prima facie, that it did not timely receive the plaintiff provider's no-fault claim. In this regard, defendant relied on the affidavit of a claims representative employed in the Hicksville, New York office of non-party Farmers Insurance Exchange ("Exchange"), the entity which "administers claims" on defendant's behalf. Although the affiant averred that there was no record of the underlying no-fault claim in his office's paper and computer files, he professed no personal knowledge of the practice and procedures put in place by defendant in connection with the handling of no-fault claims sent to its Oklahoma City office, the designated mailing address for the submission of such claims (see Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613, 614 [2010]).

In any event, plaintiff, in opposition, raised a triable issue as to the mailing of the claim by producing a stamped mailing certificate tending to support its assertion that it timely mailed the no-fault claim to defendant at its designated Oklahoma City address (see LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727 [2006]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concurI concur.
Decision Date: December 15, 2014