Amaze Med. Supply Inc. v State Farm Mut. Auto. Ins. Co.

[*1] Amaze Med. Supply Inc. v State Farm Mut. Auto. Ins. Co. 2005 NYSlipOp 51315(U) Decided on August 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: August 17, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-1334 K C

Amaze Medical Supply Inc., a/a/o LILLIANA LOPEZ, Respondent,

against

State Farm Mutual Automobile Insurance Company, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (P. Sweeney, J.), entered June 29, 2004, which denied defendant's motion for summary judgment and granted plaintiff's cross motion for summary judgment, deemed an appeal from a judgment of the same court, entered August 23, 2004, awarding plaintiff the sum of $1,819.20.

Judgment unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Assuming arguendo that defendant timely denied the claims, it nevertheless had to submit proof in admissible form to rebut plaintiff's prima facie showing (A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, supra).

In the instant action, defendant's denial was predicated upon the failure of plaintiff's assignor to appear for pre-claim independent medical examinations (IMEs). Although the failure of plaintiff's assignor to appear at a pre-claim IME can be sufficient to rebut a prima facie case established by plaintiff, to properly interpose such opposition to plaintiff's cross motion for summary judgment, defendant had to proffer evidence in admissible form establishing the failure of plaintiff's assignor to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]). While defendant's counsel and defendant's claims representative averred that plaintiff's assignor failed to appear for pre-[*2]claim IMEs, they failed either to establish that they had personal knowledge that the requests for such IMEs were mailed to plaintiff's assignor or to create a presumption of mailing by submitting an affidavit describing the standard office practice or procedures defendant uses to ensure that such letters are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff was entitled to summary judgment because defendant failed to rebut the prima facie case established by plaintiff (see Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]; S & M Supply v GEICO Ins., 3 Misc 3d 136[A], 2004 NY Slip Op 50502[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U], supra; cf. Amaze Med. 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]).
Decision Date: August 17, 2005