DELTA DIAGNOSTIC RADIOLOGY v. REPUBLIC WESTERN INSURANCE CO (2007)

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered January 6, 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 the 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's motion for summary judgment was supported by an affirmation of counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto.   Inasmuch as defendant raised no issue in the court below or on appeal 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.

As plaintiff correctly asserted in the court below and on appeal, notwithstanding the fact that the denial of claim forms were timely on their face, defendant failed to establish that any of the forms were timely mailed within the prescribed 30-day period (11 NYCRR 65-3.8[c] ).  Defendant's opposition papers lacked any documentary proof or an affidavit of a representative of defendant which would sufficiently demonstrate either actual mailing of the denials or give rise to a presumption of mailing (see New York & Presbyt. Hosp. v. Allstate Ins. Co., 29 A.D.3d 547, 814 N.Y.S.2d 687 [2006];  Nyack Hosp. v. Metropolitan Prop. & Cas. Ins. Co., 16 A.D.3d 564, 791 N.Y.S.2d 658 [2005];  Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 729 N.Y.S.2d 776 [2001] ).   Accordingly, defendant was precluded from raising its proffered defense of lack of medical necessity as to the three claims in question (see e.g. Rigid Med. of Flatbush, P.C. v. New York Cent. Mut. Fire Ins. Co., 11 Misc.3d 139(A), 2006 N.Y. Slip Op. 50582[U], 2006 WL 929259 [App. Term, 2d & 11th Jud. Dists.] ), and plaintiff was therefore entitled to summary judgment.

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

I disagree with the majority opinion and would vote to affirm the order on the ground that plaintiff failed to establish its entitlement to judgment as a matter of law.   In support of its motion, plaintiff attaches a vague, nonspecific affidavit of its corporate officer, Charles DeMarco.   Nothing in the affidavit identifies what services were rendered, when they were rendered, the amount owed, and the dates the claims were mailed.   Instead, the affidavit alleges that the “attached are my corporate business records for billing and are true copies of the no-fault claim.”   In the absence of any foundation for the admission of these records, I cannot agree that plaintiff sustained its burden of establishing a prima facie case (see Mega Supply & Billing Inc. v. Progressive Cas. Ins. Co., 14 Misc.3d 130(A), 2007 N.Y. Slip Op. 50023[U], 2007 WL 29064 [App. Term, 2d & 11th Jud. Dists.] ).

The fact that defendant raised no issue below or on appeal with respect to plaintiff's prima facie showing is irrelevant.   A movant's failure to establish a prima facie case mandates denial of a summary judgment motion without regard for the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).   Having failed to sustain its burden of making a prima facie showing, plaintiff is not entitled to judgment as a matter of law.

Accordingly, I would vote to affirm the order below.

PESCE, P.J., and BELEN, J., concur. WESTON PATTERSON, J., dissents in a separate memorandum.