Dilon Med. Supply Corp. v Progressive Cas. Ins. Co.

[*1] Dilon Med. Supply Corp. v Progressive Cas. Ins. Co. 2006 NY Slip Op 50908(U) [12 Misc 3d 127(A)] Decided on May 17, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-578 Q C.

Dilon Medical Supply Corp., a/a/o Ronel Noel, Respondent,

against

Progressive Casualty Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered October 20, 2004. The order, insofar as appealed from, granted plaintiff's motion to the extent of awarding plaintiff partial summary judgment in the sum of $1,997.

Order, insofar as appealed from, affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies provided to plaintiff's assignor, plaintiff's motion for summary judgment was granted as to its claims for $874 and $1,123, and denied as to two other claims. The instant appeal by defendant ensued.

The plaintiff established its prima facie entitlement to summary judgment on both claims since it provided proof that it submitted these claims, setting forth the fact and the amounts of the losses 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]). The presumption that an addressee received an item by mail may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff's corporate officer alleged that it is plaintiff's usual procedure to send billing by certified mail and he attached to the moving papers signed post office ledgers listing defendant as addressee, date stamped April 23, 2003 for the $874 claim and June 4, 2003 for the $1,123 claim. Thus, plaintiff made a prima facie showing of its entitlement to summary judgment thereby shifting the burden to defendant to come forward with a triable issue of fact (see Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists]). [*2]

Defendant's denial of claim form, in regard to the claim in the amount of $1,123, indicates that defendant's denial was not timely made during the 30-day statutory period within which it was required to pay or deny said claim (11 NYCRR 65-3.8 [c]). The record contains no NF-10 denial of claim form for the $874 claim. Moreover, defendant's requests for examinations under oath (EUOs) did not toll the 30-day claim determination period since its papers in opposition to plaintiff's motion for summary judgment failed to demonstrate that the policy in effect contained an endorsement authorizing EUOs, pursuant to 11 NYCRR 65-1.1 (d), which regulation became effective on April 5, 2002. In view of the foregoing, defendant failed to show that its time to deny the claims was tolled (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, defendant is precluded from raising most defenses with respect thereto (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Consequently, plaintiff is entitled to summary judgment on the $1,123 claim as well as the claim in the amount of $874.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: May 17, 2006