Maldonado v Steiner

[*1] Maldonado v Steiner 2005 NY Slip Op 51905(U) [10 Misc 3d 128(A)] Decided on November 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: November 21, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
2005-126 S C

Jose Maldonado, Appellant.

against

Ronnie L. Steiner, Defendant, -and- Liberty Mutual Insurance Company, Respondent.

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated November 15, 2004. The order, insofar as appealed from, denied plaintiff's motion for summary judgment.

Order, insofar as appealed from, unanimously modified by providing that plaintiff's motion for summary judgment is denied without prejudice to renewal upon submission of proper papers; as so modified, affirmed without costs.

In an action seeking to recover first-party no-fault benefits for medical services rendered, a prima facie entitlement to summary judgment is established by proof of submission of the claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [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 the instant case, plaintiff failed to append the NF-3 claim forms, or their substantial equivalent, as required by the insurance regulations, to his motion papers and accordingly failed to establish a prima facie case (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists]). Plaintiff's motion for summary judgment was [*2]therefore properly denied albeit for reasons other than those stated by the court below. The disposition herein is without prejudice to renewal upon submission of proper papers.

We note that plaintiff's moving papers, which include the affidavit of service accompanied by the return mail receipt indicating receipt of plaintiff's NF-2 application by defendant on December 27, 2003, were sufficient to establish timely notification of the accident within the prescribed 30-day period (see 11 NYCRR 65-1.1 [d]). Defendant's denial of receipt of the notification of the accident, consisting of the affidavit of its claims representative who averred that defendant "did not first bec[o]me
aware of the claim until February 2003," is conclusory and insufficient to rebut the presumption of mailing (cf. Kihl v Pfeffer, 94 NY2d 118 [1999]; A.B. Med. Servs. PLLC v Motor Veh. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists]).
Decision Date: November 21, 2005