A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co.

[*1] A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. 2006 NY Slip Op 51036(U) [12 Misc 3d 129(A)] Decided on May 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: GOLIA, J.P., RIOS and BELEN, JJ
2005-926 Q C. NO. 2005-926 Q C

A.M. Medical Services, P.C., as Assignee of Zhanneta Rabayeva, Respondent,

against

Progressive Casualty Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered April 20, 2004. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment.

Order affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services provided to its assignor. Plaintiff established its prima facie entitlement to summary judgment by showing that it submitted the statutory claim form, 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]).

The defendant was required to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]) unless such period was tolled through verification requests. The defendant timely sent plaintiff a verification request in which it requested the name and license of the person rendering the treatment (11 NYCRR 65-3.6 [b]). The plaintiff's attorney sent defendant a letter which stated that the requested information was attached. Defendant alleges that it did not receive the requested verification and that it therefore mailed plaintiff's attorney a follow-up verification request seeking such information, which information plaintiff has yet to provide. The defendant failed to establish that the 30-day period was tolled by the second verification request it allegedly mailed to plaintiff's attorney since it failed to submit, in admissible form, any proof of mailing of said request or an affidavit from one with personal knowledge that the request was sent to plaintiff's attorney (see e.g. Presbyterian Hosp. v Maryland Cas. Co., 226 AD2d 613 [1996]). The affidavit of defendant's litigation specialist was [*2]insufficient to establish proper mailing since there is no allegation by her that she personally mailed the claim, and the affidavit did not contain a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Hertz Corp., 9 AD3d 392 [2004]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]). In view of the foregoing, defendant failed to pay or deny the claim within the 30-day claim determination period and plaintiff's motion for summary judgment was properly granted.

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: May 19, 2006