High St. Med., P.C. v Travelers Ins. Co.

[*1] High St. Med., P.C. v Travelers Ins. Co. 2008 NY Slip Op 50217(U) [18 Misc 3d 1127(A)] Decided on February 7, 2008 Civil Court Of The City Of New York, Kings County Ash, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 7, 2008
Civil Court of the City of New York, Kings County

High Street Medical, P.C., a/a/o Rolando Garcia, Plaintiff,

against

Travelers Insurance Co., Defendant,



140745/06

Sylvia G. Ash, J.

In this no fault action, Defendant moves and Plaintiff cross moves for Summary Judgment.

Defendant contends that the Plaintiff failed to comply with verification requests and its assignor failed to attend two scheduled EUOs. Defendant further contends that Plaintiff has no standing to collect no fault benefits because it is no longer licensed to do business in New York.

The Court finds that Defendant has failed to submit proof that the verification request or the EUOs' scheduling letters were actually mailed. The affidavits submitted by Defendant reference the preparation, issuance and mailing of the Denial of Claim forms. However, there was no mention or proof of mailing for the scheduled EUOs or the request for verification. The Court further finds that Defendant's contention that Plaintiff lacks standing to collect no fault benefits to be without merit. There is no allegation or dispute that Plaintiff was properly licensed at the time the services were rendered in this matter.

Accordingly, Defendant's motion for Summary Judgment is hereby denied.

Plaintiff cross moves for Summary Judgment contending that it has submitted claim forms to Defendant and payment is overdue entitling it to Summary Judgment. Plaintiff offers the affidavit of Viktoria Beylina, a shareholder, as proof that the claim forms were mailed.

Generally in an affidavit of mailing, it is sufficient for an affiant to set forth that she possessed personal knowledge of the procedures used to ensure that items were properly mailed (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16). However, personal knowledge is not presumed from the affirmation thus the Court should be appraised as to how the deponent knew or could have known of such facts (see Bova v Vinciguerra, 139AD2d 797). If there is no evidence from which the inference of personal knowledge can be drawn then it is [*2]presumed that such does not exist (Bova, supra). Here, the affiant is a shareholder of the Plaintiff's Billing company. She avers that she has personal knowledge as a result of her involvement in its operation since the company was founded. However, she failed to describe or explain that involvement, and the court cannot draw an inference of personal knowledge from the fact that she is a shareholder.

Accordingly, the Court finds that the affidavit is too vague and conclusory to support Plaintiff's prima facie case. Therefore, Plaintiff's motion for Summary Judgment is hereby denied.

This constitutes the decision and order of the Court.

Dated: February 7, 2008_____________________________

Sylvia G. Ash, J.C.C.