May 24, 2006
Vista Surgical Supplies, Inc. v Statewide Ins. Co. (2006 NY Slip Op 51118(U))
https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-statewide-ins-co-2006-ny-slip-op-51118u/
- Decided
- May 24, 2006
- Citation
- 2006 NY Slip Op 51118(U) · 12 Misc 3d 131(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Legal questions
- Claimant's prima facie case on motions · Proof of mailing (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Statewide Ins. Co. (2006 NY Slip Op 51118(U))
| Vista Surgical Supplies, Inc. v Statewide Ins. Co. |
| 2006 NY Slip Op 51118(U) [12 Misc 3d 131(A)] |
| Decided on May 24, 2006 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-1281 K C.
against
Statewide Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered August 3, 2005. The order denied plaintiff’s motion for summary judgment.
Order affirmed without costs.
In this action to recover assigned first-party no-fault benefits, plaintiff provider moved for summary judgment. In order to establish a prima facie entitlement to summary judgment, plaintiff was required to prove that it submitted the subject claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In support of its motion for summary judgment, plaintiff submitted an affidavit of one of its corporate officers who did not aver that he had personal knowledge of the mailing of the claim forms but merely stated that “proofs of mailings for the billing and documents sent to the examiner are in my possession.” Although plaintiff did annex to the motion papers copies of two certified mail receipts from a Brooklyn post office postmarked July 3, 2002 and August 6, 2002, and two certified return receipt cards from a Hempstead post office postmarked July 8, 2002 and August 6, 2002, there is nothing in the record relating said receipts or cards to the instant claims. We note that plaintiff’s attorney’s affirmation, based on allegations by one who had no personal knowledge that the claims were actually mailed to defendant, is [*2]unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, the verification request letters annexed to defendant’s opposition papers do not establish defendant’s receipt of plaintiff’s claims since there is likewise nothing in the record relating said verification requests to the instant claims. Since the record is devoid of any competent evidence establishing either plaintiff’s mailing of the claims to defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]) or defendant’s receipt of same, plaintiff did
[*3]
not make the requisite showing to establish a prima facie entitlement to summary judgment. Accordingly, plaintiff’s motion for summary judgment was properly denied.
Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 24, 2006
Legal questions (2)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)
Held the provider failed its prima facie case because its officer lacked personal knowledge of mailing, certified-mail receipts were not tied to the claims, and the insurer's verification letters did not show receipt.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response
Held the provider did not prove mailing because the officer only possessed proofs of mailing, and certified-mail receipts and return cards were not related to the claims in the record.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 64 (this one included) are in the same category.
Cited in this decision
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- Melbourne Med., P.C. v Utica Mut. Ins. Co. (2004 NY Slip Op 24221)EUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification.
Cited by
A label shows how the later decision treated this one.
- Westchester Med. Ctr. v Liberty Mut. Ins. Co. (2007 NY Slip Op 04483) FollowedThe hospital's mailing evidence established receipt of requested verification, defeating the insurer's claim that verification remained outstanding.
Similar decisions
- Vista Surgical Supplies Inc. v Allstate Ins. Co. (2006 NY Slip Op 52520(U))The provider failed to prove mailing of its claim, while the insurer established that it had never received the claim.
- Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 51556(U))The provider failed to establish claim submission because its mailing proof did not connect the claims to the certified mail receipt.
- Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2006 NY Slip Op 51332(U))The provider's deficient mailing proof and ambiguous postal documentation left claim submission unresolved, defeating both summary judgment motions.
- Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co. (2006 NY Slip Op 26276)The provider failed to prove claim submission because its affidavit lacked mailing proof and its purported stipulation was unsigned by the insurer.
- Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50939(U))The provider failed to establish a prima facie case because its officer's affidavit lacked a sufficient business-records foundation.