PRESTIGE MEDICAL SURGICAL SUPPLY INC v. CLARENDON NATIONAL INSURANCE COMPANY

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Supreme Court, Appellate Term, New York.

PRESTIGE MEDICAL & SURGICAL SUPPLY, INC. a/a/o Yevgeniya Litvak, Appellant, v. CLARENDON NATIONAL INSURANCE COMPANY, Respondent.

Decided: August 16, 2007

PRESENT:  PESCE, P.J., RIOS and BELEN, JJ. Nwele & Associates, Brooklyn (David B. O'Connor of counsel), for appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayerson, J.), entered April 15, 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 an action to recover first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted the claim, 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 A.D.3d 742, 774 N.Y.S.2d 564 [2004];  Amaze Med. Supply v. Eagle Ins. Co., 2 Misc.3d 128(A), 2003 N.Y. Slip Op. 51701[U], 2003 WL 23310886 [App. Term, 2d & 11th Jud. Dists.] ).   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.

 In opposition to plaintiff's motion for summary judgment, defendant failed to establish that its denial of claim forms were timely mailed.   The affidavit submitted by defendant stated that it was the standard office practice and procedure to make a handwritten notation of the date the denial of claim form was mailed in the upper right corner of the copy of said denial of claim form which is kept in the file and that based upon the affiant's review of the copies of the denial of claim forms annexed to defendant's opposing papers, the usual office practice and procedure concerning mailing was followed.   As a result, the affiant was certain that the denial of claim forms were timely mailed.   However, since the denial of claim forms annexed to defendant's opposing papers do not contain a handwritten date in the upper right corner, the documentary proof annexed to defendant's opposing papers was insufficient to give rise to a presumption that the denial of claims forms were mailed pursuant to a standard office practice or procedure (see New York & Presbyt. Hosp. v. Allstate Ins. Co., 29 A.D.3d 547, 814 N.Y.S.2d 687 [2006];  PDG Psychological, P.C. v. Lumbermans Mut. Cas. Co., 16 Misc.3d 131(A), 2007 N.Y. Slip Op. 51343[U], 2007 WL 1989436 [App. Term, 2d & 11th Jud. Dists.] ).   Since defendant failed to establish that the denial of claim forms were timely mailed to plaintiff, defendant is precluded from raising the proffered defense of lack of medical necessity (see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 282, 660 N.Y.S.2d 536, 683 N.E.2d 1 [1997];  New York & Presbyt. Hosp. v. Allstate Ins. Co., 30 A.D.3d 492, 819 N.Y.S.2d 268 [2006];  PDG Psychological, P.C. v. Lumbermans Mut. Cas. Co., 16 Misc.3d 131(A), 2007 N.Y. Slip Op. 51343[U], supra ).

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.