AKS Med., P.C. v Progressive Ins. Co.

[*1] AKS Med., P.C. v Progressive Ins. Co. 2009 NY Slip Op 51494(U) [24 Misc 3d 135(A)] Decided on July 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-450 Q C.

AKS Medical, P.C., as assignee of KISHA SNIPES, Respondent,

against

Progressive Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 9, 2008. The order, insofar as appealed from as limited by the brief, granted so much of plaintiff's motion as sought summary judgment upon its fifth cause of action.

Order, insofar as appealed from, reversed without costs and so much of plaintiff's motion as sought summary judgment upon its fifth cause of action denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, insofar as is relevant to this appeal, upon its fifth cause of action, involving a claim in the sum of $398.61. In opposition to plaintiff's
motion, defendant argued that it never received said claim. As limited by its brief, defendant appeals from so much of the Civil Court order as granted plaintiff summary judgment on its fifth cause of action.

A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a 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]). A provider ordinarily establishes the submission of the claim form by demonstrating proof of its proper mailing, which proof gives rise to the presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing, or by 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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Here, in light of the contradictions between the affidavit of plaintiff's billing manager and the annexed post office ledger, upon which the billing manager relied, plaintiff did not establish submission of the $398.61 claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Consequently, plaintiff failed to establish its prima facie entitlement [*2]to summary judgment on its fifth cause of action. Accordingly, the order, insofar as appealed from, is reversed and so much of plaintiff's motion as sought summary judgment on its fifth cause of action is denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009