Gribenko v Allstate Ins. Co.

[*1] Gribenko v Allstate Ins. Co. 2005 NYSlipOp 52201(U) Decided on December 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2004-1798 K C. NO. 2004-1798 K C

VIKTOR GRIBENKO, M.D., P.C. and R.I.M MEDICAL a/a/o OLEG DADASHEV, GENNADIY IZRAILOV, SCOTT KLEIN, IVAN LAGODYUK, FAUD MEKHTIEV and DAVID YUSUPOV, Respondents,

against

ALLSTATE INSURANCE COMPANY, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jack Battaglia, J.), entered November 16, 2004. The order granted plaintiffs' motion for summary judgment.

Order reversed without costs and plaintiffs' motion for summary judgment denied.

In general, a health care provider establishes 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Affidavits of the persons who rendered medical services to plaintiffs' assignors were submitted in support of plaintiffs' motion for summary judgment. Although the affiants stated that it was the practice of their offices to mail claim forms within five business days of the date on the claim form, this was not sufficient to constitute proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v [*2]Scottsdale Ins. Co., 286 AD2d 679 [2001]). Nor did the affidavits state that it was the duty of the affiants to ensure compliance with said office procedures or that the affiants had actual knowledge that said office procedures were complied with (see Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as plaintiffs
herein failed to establish by competent proof that the claim forms were
submitted to defendant, they did not make the requisite showing to establish a prima facie entitlement to summary judgment, and the burden never shifted to defendant (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, summary judgment should have been denied.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

[*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and BELEN, JJ.
VIKTOR GRIBENKO, M.D., P.C. and R.I.M MEDICAL
a/a/o OLEG DADASHEV, GENNADIY IZRAILOV,
SCOTT KLEIN, IVAN LAGODYUK, FAUD MEKHTIEV
and DAVID YUSUPOV,
Respondents,

-against-
ALLSTATE INSURANCE COMPANY,
Appellant.

Golia, J., concurs in the following memorandum:

I concur with the majority in reversing the order of the lower court, but need to amplify the distinction that I find between being a proponent of a motion for summary judgment and opposing a motion for summary judgment.

In the case at bar, plaintiffs moved for summary judgment directing payment for no-fault claims, based upon their contention that they had established a prima facie case that claims were properly sent and that defendant failed to pay or deny the claims within
30 days. The lower court granted summary judgment, and the majority of this court reverses, upon a finding that plaintiffs' submissions failed to establish that the claim forms were, in fact, actually mailed to defendant.

While I am in agreement with this holding, I feel compelled to clarify the distinction between my support of this holding and my dissent from this court when it grants summary judgment to a plaintiff which establishes actual mailing where the defendant asserts that it mailed a denial but fails to properly establish that the denial form was mailed.

I have held in a number of cases, including my dissent in Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 51772[U] [App Term, 2d & 11th Jud Dists]), that: "Although the defendant's affidavits do not contain detailed mailing procedures [*4]necessary to establish proof that a certain item was mailed . . . , I do find that the sworn statements by defendant's medical examination scheduler' are sufficient for the purpose of denying a motion for summary judgment (see Weiss v Garfield, 21 AD2d 156 [1964])." (emphasis added)

The important distinction is that an "incomplete" proof of mailing can be sufficient to warrant denying a motion for summary judgment but is not sufficient to warrant granting a motion for summary judgment.

As stated by the Appellate Division in the early case of Braun v Carey (280 App Div 1019 [1952]), and cited with approval by the Court of Appeals in Sillman v Twentieth Century-Fox Film Corp. (3 NY2d 395 [1957]), the drastic remedy of "summary judgment on affidavits should not be granted where there is any doubt as to the existence of triable issues of fact" (Braun v Carey, 280 App Div at 1019-1020).

Accordingly, I concur with the majority in reversing the order of the lower court.
Decision Date: December 30, 2005