Star Med. Supply v Farmington Cas. Co.

[*1] Star Med. Supply v Farmington Cas. Co. 2009 NY Slip Op 50971(U) [23 Misc 3d 140(A)] Decided on May 14, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2007-1901 K C.

Star Medical Supply a/a/o ARKADIY NAGOREN, Appellant,

against

Farmington Casualty Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered September 27, 2007. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment on its claim, arising on October 9, 2002, in the sum of $449.50. Defendant opposed plaintiff's motion, arguing that plaintiff failed to establish that the claim was submitted to defendant. The Civil Court denied plaintiff's motion on the ground that plaintiff had failed to prove its prima facie entitlement to summary judgment, because plaintiff had failed to lay a sufficient foundation to establish that the documents annexed to plaintiff's motion constituted evidence in admissible form. This appeal by plaintiff ensued.

Upon a review of the record, we find that plaintiff failed to establish its prima facie entitlement to summary judgment by proof 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]). Contrary to defendant's contention on appeal, plaintiff's affidavit sufficed to established that the annexed claim form constituted evidence in admissible form (see CPLR 4518; Dan Med., [*2]P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). However, the affidavit failed to establish submission of the claim form. In addition, defendant's denial of claim form annexed to plaintiff's moving papers did not constitute an admission that defendant received the claim form at issue since the denial of claim form pertained to a claim arising on a date, December 2, 2002, and sought payment of a sum, $842, different from the claim at issue in this case. Consequently, the denial of plaintiff's motion for summary judgment is affirmed, albeit on other grounds.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 14, 2009