KING MEDICAL SUPPLY INC v. HEREFORD INSURANCE COMPANY (2004)

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered September 10, 2003, denying its motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical supplies provided to its assignor.   Thereafter, plaintiff moved for summary judgment in the amount of $980, which motion was denied by order entered September 10, 2003.

 Contrary to the determination of the court below, plaintiff's billing manager did not have to allege in his supporting affidavit that he had personal knowledge that the equipment was furnished to plaintiff's assignor.   Said affidavit set forth the billing manager's duties so as to support the conclusion that the attached exhibits were sufficiently accurate and trustworthy to merit their admission into evidence pursuant to the business record exception to the hearsay rule (see CPLR 4518[a];  People v. Kennedy, 68 N.Y.2d 569, 510 N.Y.S.2d 853, 503 N.E.2d 501 [1986] ), and said exhibits established that the supplies were furnished to the assignor.

 A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment by showing that it submitted a properly completed claim form to defendant for $980 (see Insurance Law § 5106[a];  Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742, 774 N.Y.S.2d 564 [2004];  Damadian MRI in Elmhurst v. Liberty Mut. Ins. Co., 2 Misc.3d 128(A), 784 N.Y.S.2d 919, 2003 N.Y. Slip Op. 51700[U], 2003 WL 23310887 [App. Term, 9th & 10th Jud. Dists.] ).   It is uncontroverted that defendant had until July 17, 2003 to pay or deny plaintiff's claim.   The plaintiff's billing manager asserted that the defendant's denial was untimely and he submitted a photocopy of an envelope, postmarked August 29, 2003, which allegedly contained the denial form.   Defendant, however, submitted the affidavit of its claims adjuster who attested to the routine procedure and practice of her office, in the regular course of its business, which indicates that the denial had been duly addressed and mailed to plaintiff on July 17, 2003.   In view of the foregoing, we find that the court below properly determined that a triable issue of fact existed (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).   Accordingly, plaintiff's motion for summary judgment was properly denied.