Alur Med. Supply, Inc. v GEICO Ins. Co.

[*1] Alur Med. Supply, Inc. v GEICO Ins. Co. 2010 NY Slip Op 51053(U) [27 Misc 3d 142(A)] Decided on June 11, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2009-627 K C.

Alur Medical Supply, Inc. as assignee of FREDDY CEPEDA, Respondent,

against

GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered November 17, 2008, deemed from a judgment of the same court entered December 20, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2008 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $730.50.

ORDERED that the judgment is reversed without costs, the order granting plaintiff's motion for summary judgment is vacated, and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that the claim had been submitted more than 45 days after the date the services had been rendered. The Civil Court granted plaintiff's motion, and the instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

A provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted to the insurer 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]). Ordinarily, a provider establishes the submission of the claim form by proof of its proper mailing, which proof gives rise to a 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]). [*2]

In the instant case, plaintiff's motion for summary judgment was supported by the affidavit of plaintiff's billing manager as well as an annexed certificate of mailing, referred to in the affidavit, which indicated that the subject claim form was mailed to a different insurer. In light of the discrepancies between the affidavit and the annexed certificate of mailing, plaintiff did not establish submission of the claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also AKS Med., P.C. v Progressive Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51494[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment, and its motion should have been denied.

Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated, and plaintiff's motion for summary judgment is denied.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 11, 2010