Boro Med. Supplies, Inc. v Country Wide Ins. Co., 2008 NY Slip Op 52698(U) (App. Term, 2nd, 2009)

Motion by appellant for leave to appeal to the Appellate Division from the order of this court dated February 8, 2008 denied as academic.

On the court’s own motion, reargument of the order and decision of this court in the above-entitled action, dated February 8, 2008, is granted and, upon reargument, the order and decision of this court dated February 8, 2008 are vacated and the following is substituted as the decision of the court:

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated October 17, 2006. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion, asserting,
inter alia, that the affidavits submitted by plaintiff were insufficient to support plaintiff’s motion for summary judgment and that plaintiff failed to submit a timely claim for reimbursement of benefits. The court denied plaintiff’s motion for summary judgment, holding that defendant raised triable issues of fact as to the denial of the claim and as to whether plaintiff timely mailed the bills to defendant. This appeal by plaintiff ensued.

Plaintiff established its prima facie entitlement to summary judgment by proof that it [*2]submitted the claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]). The burden, therefore, shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

The affidavit’ of defendant’s no-fault supervisor, submitted by defendant to establish that defendant timely denied plaintiff’s claim, was not signed. Thus, the affidavit’ is of no probative value and defendant failed to establish that it timely denied plaintiff’s claim within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]). As a result, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its proffered defense that the claim was submitted more than 45 days after the date of service.

Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

And here is the decision it replaces.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, two affidavits by a corporate officer of plaintiff and various documents annexed thereto. The affidavits executed by the corporate officer stated in a conclusory manner that the documents annexed to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavits by plaintiff’s officer failed to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. The court below denied the motion on the ground that defendant raised a question of fact as to the timeliness of plaintiff’s mailing of the claim. Plaintiff appeals from the denial of its motion for summary judgment.

Since the affidavits submitted by plaintiff’s officer were insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment ( see Dan Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc.3d 44 [App Term, 2d & 11th Jud Dists 2006] ). Consequently, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

There is no reference to Dan Med in the new decision.  And right after the Appellate Division grants leave in Carothers v. Geico.  Weird.

Mani Med., P.C. v Eveready Ins. Co., 2008 NY Slip Op 52697(U) (App. Term, 2nd, 2009)

On the court’s own motion, reargument of the order and decision of this court, dated January 15, 2008, in the above entitled action, is granted and, upon reargument, the order and decision of this court dated January 15, 2008 are vacated and the following is substituted as the decision of the court:

***

Defendant argues that plaintiff failed to make a prima facie showing because plaintiff did not demonstrate that it possessed a valid assignment. Even assuming that a prima facie case requires proof of a valid assignment, where, as here, the claim forms stated that the assignor’s signature was on file,’ such a burden is satisfied, inasmuch as defendant did not timely take action to verify the existence of a valid assignment (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]). Since defendant raises no other issue with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

While plaintiff sought summary judgment, inter alia, upon its claim form dated December 23, 2002 in the sum of $746.01, the record is devoid of any proof of a denial of claim form corresponding to plaintiff’s $746.01 claim form. (We note that the supervisor of defendant’s no-fault department submitted an affidavit in opposition in which she stated that defendant received separate claims seeking the sums of $82.89 and $663.23.’ The sum of the foregoing two claims does not equal $746.01. However, two of the NF-10 denial of claim forms annexed to defendant’s opposing papers indicated that they denied separate claims seeking the sums of $82.89 and $663.12, the sum of which does equal $746.01. Defendant makes no attempt to explain this discrepancy.) As a result, plaintiff was entitled to summary judgment upon its claim for $746.01.

Further, with respect to plaintiff’s remaining claims, the court below held that the peer review reports submitted by defendant in opposition to plaintiff’s motion were inadmissible inasmuch as they failed to comply with CPLR 2106. Where, as here, the signatures appear to be affixed by stamp or generated by a computer, plaintiff’s assertion, in its reply papers, that such peer review reports did not constitute evidence in admissible form due to a failure to comply with CPLR 2106 would ordinarily raise an issue of fact that cannot be resolved on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; see also James v Albank, 307 AD2d 1024 [2003]). However, inasmuch as defendant’s counsel has submitted papers to this court in opposition to plaintiff’s motion for leave to appeal to the Appellate Division from the original order of this court dated January 15, 2008, (which motion has been rendered academic by the issuance of this decision and order), conceding that [t]he reports in question contain stamped signatures,’ and there is nothing in the record to indicate that the stamped signatures were placed on the reports by the doctor who performed the peer reviews or at his direction, it is our view that defendant failed to raise a triable issue of fact with respect to the claim at issue (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]).