Post Traumatic Med. Care P.C. v Travelers Home & Mar. Ins. Co.

[*1] Post Traumatic Med. Care P.C. v Travelers Home & Mar. Ins. Co. 2006 NY Slip Op 52222(U) [13 Misc 3d 138(A)] Decided on October 27, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 12, 2006; it will not be published in the printed Official Reports.

Decided on October 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-1210 K C. NO. 2005-1210 K C

Post Traumatic Medical Care P.C. A/A/O DENNY HILTON, Appellant,

against

Travelers Home and Marine Insurance Company A/K/A TRAVELERS PROPERTY CASUALTY CORPORATION, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered July 22, 2005. The order denied plaintiff's cross motion which sought summary judgment and granted defendant's motion to the extent of compelling plaintiff to respond to specified discovery demands served by defendant.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff appeals from an order which denied its cross motion for summary judgment and which also
required plaintiff to respond to defendant's discovery demands. As stated by the Appellate Division, Second Department, in New York & Presbyt. Hosp. v Allstate Ins. Co. (29 AD3d 547, 548 [2006]):
"The plaintiff, as the proponent of the summary judgment motion, had the initial burden of showing their prima facie entitlement to judgment as a matter of law by submitting evidentiary proof that [*2]the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). The plaintiffs failed to submit a proper affidavit of service to establish as a matter of law that the subject hospital bill was mailed and received by the defendant. Generally, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee' (Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998] [internal quotation marks omitted]). The presumption 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' (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001])."

In the instant case, the affidavit submitted by plaintiff's billing manager stated that she mailed the claim, but it did not set forth when the claim was mailed or describe plaintiff's office practice and procedure for mailing no-fault claims to insurers to establish the date of mailing (see New York & Presbyt. Hosp., 29 AD3d at 548;
Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]; A.B. Med. Servs. PLLC v Specialty Natl. Ins. Co., 11 Misc 3d 144[A], 2006 NY Slip Op 50810[U] [App Term, 2d & 11th Jud Dists]). Contrary to plaintiff's contentions, the certified mail receipt, return receipt card was insufficient to establish when the subject claim was mailed to defendant given the affidavit's deficiencies because there was no evidence that this claim was mailed to defendant under the article number set forth on the certified mail, return receipt card (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 548). Since plaintiff's submissions were insufficient to establish that payment was overdue, and defendant's papers did not cure such deficiency, "upon all the papers and proof submitted" (CPLR 3212 [b]), a prima facie entitlement to summary judgment in favor of plaintiff was not demonstrated. Accordingly, plaintiff's cross motion was properly denied without regard to the sufficiency of defendant's opposing papers (see Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]).

While we do not consider plaintiff's contention that defendant was not entitled to any discovery because this argument is raised for the first time on appeal (see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004]), we note that it is contrary to a voluntary concession contained in plaintiff's submissions to the Civil
Court wherein plaintiff agreed to provide discovery if plaintiff's cross motion for summary judgment was denied.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum. [*3]

Golia, J., 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: October 27, 2006