Careplus Med. Supply Inc. v General Assur. Co.

[*1] Careplus Med. Supply Inc. v General Assur. Co. 2005 NYSlipOp 50429(U) Decided on March 31, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-623 S C

CAREPLUS MEDICAL SUPPLY INC. a/a/o VICTOR VASQUEZ, MARGARET EDME KATY CORDILLO and DAVID ORTIZ , Appellant,

against

GENERAL ASSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the District Court, Suffolk County (J. Flanagan, J.), dated March 29, 2004, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignors, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amount of the loss 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 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). In opposition, defendant argued that it properly denied the claims based on the assignors' failure to attend independent medical examinations (IMEs).

Where "an insurer timely asserts in its claim denial form an injured person's failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in admissible form in opposition to a plaintiff's motion for summary judgment, the presumption of [*2]medical necessity which attaches to the claim form is rebutted . . . and such proof defeats the motion" (Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists] see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]). The record indicates that the claim for $630, submitted for supplies furnished to plaintiff's assignor Edme, was untimely denied. As to this claim, defendant is precluded from asserting the defense of nonattendance at scheduled IMEs (see 11 NYCRR 65-3.8 [c]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). As to the remaining claims, it is undisputed on the record that defendant timely denied these based on the nonattendance of plaintiff's assignors at the pre-claim IMEs scheduled by defendant. However, defendant has failed to establish by proof in admissible form that it mailed the IME notices to plaintiff's assignors.

Proof of proper mailing requires either evidence of "actual mailing or . . . a standard office practice or procedure designed to ensure the items are properly addressed and mailed" (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). Proof of actual mailing may be by certificate of mailing or by affidavit of one with personal knowledge (Tracy v William Penn Life Ins. Co. of N.Y., 234 AD2d 745, 748 [1996]).

In the instant case, defendant's submissions in opposition to plaintiff's motion, including the affidavits of the no-fault supervisors for Metro Medical Services and D & D Associates who allegedly scheduled the IMEs for defendant, were insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the IME letters were actually mailed. Nor did the affidavits contain a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., ___Misc 3d ___, 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]; cf. Amaze Medical Supply Inc. v New York Cent. Mut. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51680[U] [App Term, 2d & 11th Jud Dists])

Defendant also submitted mailing receipts as proof of mailing of certain of the IME letters to the attorneys for the assignors Vasquez and Edme. However, there is no competent proof of mailing of the IME notices to the assignors themselves. Under the circumstances of this case, defendant's opposition papers are insufficient to defeat the plaintiff's motion for summary judgment.

Accordingly, summary judgment is granted in favor of plaintiff, and matter is remanded for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: March 31, 2005