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Supreme Court, Appellate Division, Second Department, New York.


Decided: April 29, 2008

A. GAIL PRUDENTI, P.J., STEVEN W. FISHER, HOWARD MILLER, and RUTH C. BALKIN, JJ. Joseph Henig, P.C., Bellmore, N.Y. (Mark Green of counsel), for appellant. Teresa M. Spina, Woodbury, N.Y. (Jeanne M. Ortega of counsel), for respondent.

In an action to recover no-fault medical payments, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), dated July 25, 2007, as denied its motion for summary judgment on the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The plaintiff established its prima facie entitlement to judgment as a matter of law.   It submitted evidentiary proof that the prescribed statutory billing forms were mailed and received, that payment of no-fault benefits was overdue (see Nyack Hosp. v. Metropolitan Prop. & Cas. Ins. Co., 16 A.D.3d 564, 791 N.Y.S.2d 658), and that the denial of claim form it received from the defendant, dated June 25, 2006, was fatally insufficient in that it failed to include the information called for in the prescribed denial of claim form (see Nyack Hosp. v. Metropolitan Property & Cas. Ins. Co., 16 A.D.3d 564, 791 N.Y.S.2d 658;  Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 226 A.D.2d 613, 641 N.Y.S.2d 395;  cf. Westchester Med. Ctr. v. Allstate Ins. Co., 45 A.D.3d 579, 846 N.Y.S.2d 202).   However, in opposition, the defendant submitted admissible evidence in the form of an affidavit of an employee with knowledge of the defendant's standard office practices or procedures designed to ensure that items were properly addressed and mailed (see New York & Presbyterian Hosp. v. Allstate Ins. Co., 29 A.D.3d 547, 814 N.Y.S.2d 687;  Hospital for Joint Diseases v. Nationwide Mut. Ins. Co., 284 A.D.2d 374, 726 N.Y.S.2d 443;  Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 729 N.Y.S.2d 776;  Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16, 847 N.Y.S.2d 322;  cf. Westchester Med. Ctr. v. Countrywide Ins. Co., 45 A.D.3d 676, 846 N.Y.S.2d 230).   The employee attested that a denial of claim form dated June 22, 2006, containing all the information called for in the prescribed form was timely issued to the plaintiff on that date.   Thus, the defendant raised a triable issue of fact as to whether it issued a proper denial of claim form.

 Contrary to the plaintiff's further contention, the excerpts of the insured's medical records submitted by the defendant in opposition to its motion constituted admissible evidence sufficient to raise a triable issue of fact as to whether the defendant was entitled to deny the claim (see CPLR 4518 [c];  Maxcy v. County of Putnam, 178 A.D.2d 729, 576 N.Y.S.2d 959).

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