SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered January 18, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. The court below denied both motions on the ground that an issue of fact existed as to whether the insurance policy issued by defendant contained coverage for bodily injury. Plaintiff appeals from so much of the order as denied its motion for summary judgment.

In Zappone v Home Ins. Co. (55 NY2d 131, 135-136 [1982]), the Court of Appeals noted that an untimely denial of coverage does not “bring within the policy a liability incurred neither by the person insured nor in the vehicle insured, for to do so would be to impose liability upon the carrier for which no premium had ever been received by it and to give no significance whatsoever to the fact that automobile insurance is a contract with a named person as to a specified vehicle.” Thus, the timeliness of the denial of claim form issued by the instant defendant is irrelevant to the extent defendant’s defense is predicated upon the fact that the insurance policy issued by defendant covered property damage only and it did not provide coverage for no-fault benefits (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Moreover, contrary to plaintiff’s contention, under the circumstances, defendant’s opposing papers were sufficient to demonstrate the existence of an issue of fact as to whether the [*2]insurance policy issued by defendant obligated defendant to pay claims for no-fault benefits (see Zappone v Home Ins. Co., 55 NY2d 131, supra; Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the order is affirmed.

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: July 12, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Larry S. Schachner, J.), entered April 3, 2006, which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment in the principal sum of $3,360.94.

Per Curiam.

Order (Larry S. Schachner, J.), entered April 3, 2006, modified to deny plaintiff’s cross motion for summary judgment, and as modified, affirmed, without costs. The matter is remanded for further proceedings consistent with this decision.

In this action to recover assigned first party no-fault benefits, the drastic sanction of precluding defendant from asserting its defense of exhaustion of policy limits was unwarranted in the absence of a showing that defendant’s single failure to comply with the parties’ discovery stipulation was willful and contumacious (see CPLR 3126; Villega v New York City Hous. Auth., 231 AD2d 404 [1996]). Since triable issues exists as to whether the policy limits had been exhausted at the time plaintiff submitted its claims, defendant is directed to comply with all outstanding discovery relevant to the issue of exhaustion of policy limits.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: July 9, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Francis Alessandro, J.), entered January 25, 2006, which granted plaintiff’s motion for summary judgment in the principal amount of $4,126.93.

Per Curiam.

Order (Francis Alessandro, J.), entered January 25, 2006, reversed, with $10 costs, motion denied, and matter remanded for further proceedings.

In this action to recover assigned first party no-fault benefits, defendant’s submissions in opposition to plaintiffs’ motion for summary judgment sufficed to raise triable issues of fact as to whether the “alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Thus, plaintiff’s motion for summary judgment should have been denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: July 9, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 23, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs and, upon searching the record, defendant’s cross motion for summary judgment dismissing the action granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. The court denied both motions and plaintiff appeals from so much of the order as denied its motion for summary judgment.

On appeal, defendant asserts that the affidavit by plaintiff’s owner, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s owner was insufficient to establish that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Bath Med. Supply, [*2]Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Although defendant did not cross-appeal from so much of the order as denied its cross motion for summary judgment dismissing the action, pursuant to this Court’s authority to search the record and grant summary judgment to a non-appealing party, the cross motion for summary judgment should be granted (CPLR 3212 [b]; see e.g. Dunham v Hilco Constr. Co., 89 NY2d 425, 429-230 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]; Ocean Diagnostic Imaging, P.C. v Nationwide Mut. Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50477[U] [App Term, 2d & 11th Jud Dists]). Defendant’s peer review report established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted, thereby entitling defendant to the relief it sought below (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists] [“(T)he insurer . . . if not precluded, may rebut the inference (of medical necessity) by proof in admissible form establishing that the health benefits were not medically necessary. . . . If not refuted by the no-fault benefits claimant, such proof may entitle the insurer to summary judgment”]).

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
A KHODADADI RADIOLOGY, P.C.
a/a/o CARLOS GOMEZ,

Appellant,

-against-
NY CENTRAL MUTUAL FIRE INS. CO.,

Respondent. [*3]

Golia, J.P., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 03, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Eileen A. Rakower, J.), dated August 15, 2005, which denied their motion for summary judgment.

Per Curiam.

Order (Eileen A. Rakower, J.), dated August 15, 2005, reversed, with $10 costs, and plaintiffs’ motion for summary judgment granted in the principal amount of $21,913.39.

In opposition to plaintiffs’ prima facie showing of entitlement to summary judgment, defendant failed to raise any triable issues of fact. Inasmuch as it is undisputed that defendant did not timely deny the subject claims within 30 days of receipt thereof (see 11 NYCRR 65-3.8 [c]), it is precluded from asserting any statutory defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), defenses predicated upon breach of conditions precedent or policy exclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), or a defense of provider fraud based on fraudulent billing practices (see Valley Psychological, P.C. v Liberty Mut. Ins. Co., 30 AD3d 718, 719 [2006]).

While an untimely denial does not preclude a defense based on lack of coverage, defendant’s documentary submissions were insufficient to raise issues of fact as to whether the alleged injuries arose out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199) or whether the accident was an intentional collision in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins., 293 AD2d 751 [2002]).

We have considered defendant’s remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: July 2, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Bonnie P. Chaikin, J.), entered March 15, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for renewal of its prior motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The motion was supported by an affirmation of counsel, an affidavit of an officer of plaintiff, and various documents annexed thereto. In opposition to plaintiff’s motion, defendant argued, inter alia, that the affirmation of counsel was of no probative value and that the affidavit of plaintiff’s officer was insufficient to establish personal knowledge of the facts set forth therein. The court below denied plaintiff’s motion on this basis and plaintiff moved to renew the motion, annexing a more detailed affidavit of its officer. The court below denied the motion to renew on the ground that plaintiff failed to set forth any facts not previously known at the time of submission of the original motion. The instant appeal ensued.

CPLR 2221 (e) (2) provides that a motion for leave to renew a prior motion must be based upon “new facts not offered on the prior motion that would change the prior determination” or must show “that there has been a change in the law that would change the prior determination.” Furthermore, the motion papers must contain a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). In the instant case, plaintiff did not proffer a reasonable justification for its failure to present the facts upon which its [*2]renewal motion was based to the motion court on its prior motion for summary judgment (see T & B Port Washington, Inc. v McDonough, 34 AD3d 785 [2006]; Renna v Gullo, 19 AD3d 472 [2005]). Moreover, to the extent that plaintiff based its motion upon changes in the law, the cases proffered by plaintiff, which purportedly represented such changes, were neither dispositive of the issue of the sufficiency of plaintiff’s officer’s affidavit nor did they represent changes in the decisional law. Accordingly, the motion was properly denied.

We note that where there is no change in the decisional law, but a party is of the opinion that the motion court overlooked or misapprehended existing law, the proper vehicle is a motion to reargue (CPLR 2221 [d]). In the instant case, however, plaintiff’s motion, to the extent that it could be deemed to be seeking reargument, was untimely made.

McCabe, J.P., and Tanenbaum, J., concur.

Lippman, J., taking no part.
Decision Date: June 29, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 29, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

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 from plaintiff’s counsel, an affidavit by plaintiff’s owner, and various documents annexed thereto. The affidavit executed by plaintiff’s owner stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. The court below
denied the motion on the ground that plaintiff’s owner failed to set forth his job duties or the basis for his personal knowledge, if any, of plaintiff’s billing procedures so as to lay a foundation for the admission of plaintiff’s business records. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s owner was insufficient to establish that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see [*2]Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Dan Medical, P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

In view of the foregoing, we reach no other issue.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: June 29, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered March 2, 2006. The judgment denied the petition to vacate the master arbitrator’s award and dismissed the proceeding.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claims for first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court
below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

We further note that the record reveals that the petition was timely filed (CPLR
7511 [a]).

Weston Patterson, J.P., Golia and Belen, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), dated August 10, 2005. The order denied defendant’s cross motion for summary judgment and granted plaintiff’s motions for summary judgment.

Order modified by providing that plaintiff’s motions for summary judgment are denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, in one motion, to recover upon its claims for treatment allegedly provided assignor Yekaterina Panina, and in a second motion, for summary judgment upon its claims for treatment provided assignors Iraida Fundator,
Nikita Vesensky, Arshavir Amatunyan, and Ruslan Babskiy. Defendant cross-moved for summary judgment. The court granted plaintiff’s motions and denied defendant’s cross motion. Defendant appeals.

Plaintiff’s proof of mailing of the claim forms concerning the services allegedly provided Panina, which defendant denied receiving, was insufficient (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). As a result, plaintiff’s motion for summary judgment upon those claims should have been denied. [*2]

As to the remaining claims, set forth in plaintiff’s second motion, defendant’s NF-10 claim denial forms and the affidavit of its claims examiner conceded receipt of the claims of assignors Fundator, Vesensky, Amatunyan and Babskiy, in the amounts, respectively, of $6,504.86, $964.50, $2,025.42, and $2,379.06, thereby curing the deficiencies in plaintiff’s proof of mailing with respect thereto (see Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co., 13 Misc 3d 127[A], 2006 NY Slip Op 51672[U] [App Term, 2d & 11th Jud Dists]; see also Oleg Barshay, DC., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). As there was no proof of the mailing of the remaining claims for which plaintiff sought summary judgment, and defendant did not admit the claims’ receipt, summary judgment in favor of plaintiff as to those sums should also have been denied.

With respect to the claims for which defendant conceded receipt, its denials were untimely since its requests for examinations under oath did not toll the 30-day claim determination period inasmuch as the insurance regulations applicable at the time lacked a provision entitling an insurer to an examination under oath (see Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50611[U] [App Term, 2d & 11th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]), thereby precluding most defenses, including “fraudulent claims” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997]). However, defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Defendant’s documentation included transcripts of the examinations under oath of several persons involved in the incident, which contain numerous statements that are implausible on their face with respect to matters material to the determination of whether the incident was staged to defraud defendant. Defendant also established that plaintiff’s billing agency and a medical provider sharing plaintiff’s professional address have entered guilty pleas to grand larceny and scheme to defraud in the first degree, which charges were based on the submission of false no-fault benefits claims. As a condition of the pleas, the billing agency and provider were required, respectively, to withdraw pending claims and to refrain from filing further claims for treatment alleged to have been provided in the period in which the instant treatment, and the claims based thereon, occurred. We note that some of plaintiff’s assignors had contact with the aforementioned provider for injuries alleged to have been caused by the incident underlying all of plaintiff’s claims. On the facts herein, we find that defendant established that its denials were based upon a “founded belief that the alleged injur[ies] d[id] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199) to the extent of warranting a trial as to coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]; A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists]).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK [*3]
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
EAST ACUPUNCTURE, P.C.
a/a/o IRAIDA FUNDATOR, NIKITA VESENSKY,
YEKATERINA PANINA, ARSHAVIR AMATUNYAN
and RUSLAN BABSKIY,

Respondent,

-against-

ELECTRIC INSURANCE CO.,
Appellant.

Golia, J.P., concurs in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

Nassau Dist Ct

34247/06

Attorneys for Plaintiff: Joseph Henig, PC

Attorneys for Defendant: Carman, Callahan & Ingham, LLP

Andrew M. Engel, J.

The Plaintiff commenced this action to recover no-fault first party benefits for medical services provided to its assignor between March 28, 2005 and April 1, 2005, inclusive, following a motor vehicle accident of March 28, 2005. The action was commenced on or about September 12, 2006; and, issue was joined on or about October 19, 2006. The Plaintiff now moves for summary judgment pursuant to CPLR § 3212. The Defendant opposes the motion and cross-moves for the same relief. The Plaintiff opposes the cross-motion.

Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) The court’s function in determining such a motion is issue finding, not issue determination. Sillman v. Twentieth Century-Fox Film Corporation, supra . To prevail, the movant must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979).

To make out a prima facie case, the Plaintiff must establish the proper submission [*2]of its claim and the carrier’s failure to either pay or issue a valid denial within thirty (30) days of receipt thereof. 11 N.Y.C.R.R. § 65-3.8(a)(1) and (c); Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 NYS2d 536 (1997); Nyack Hospital v. State Farm Mutual Automobile Insurance Company, 11 AD3d 664, 784 NYS2d 136 (2nd Dept. 2004); Westchester Medical Center v. AIG, Inc., 36 AD3d 900, 829 NYS2d 180 (2nd Dept. 2007).

The Plaintiff’s Hospital Biller and Account Representative alleges that she billed the Defendant, for the services in question, on June 29, 2005, in the amount of $12,734.17 by certified mail return receipt requested. The Plaintiff submits the return receipt card which specifically identifies the no-fault bill of its assignor and indicates that the Defendant received and signed for the bill on July 1, 2005. The Plaintiff further alleges that the Defendant neither paid nor denied the claim within thirty (30) days of its receipt.

In opposition to the Plaintiff’s motion and in support of its cross-motion, the Defendant submits the affidavit of Mariann Yuengling, its Claims Specialist for the No-Fault Department. Ms. Yuengling admits the Defendant’s receipt of the Plaintiff’s bill, in the sum of $12,734.17, on July 1, 2005. Similarly, the Defendant does not dispute that it has not paid this claim. Based thereon, the Plaintiff has established a prima facie right to the entry of a judgment, as a matter of law. To successfully defeat the Plaintiff’s motion, it is now incumbent upon the Defendant to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for [its] failure so to do.” Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980).

Ms. Yuengling, on the Defendant’s behalf, alleges that the Defendant did issue a denial to the Plaintiff’s claim within thirty (30) days of its receipt, based upon the untimeliness of the Plaintiff’s claim. Specifically, Ms. Yuengling alleges that the Plaintiff’s claim here in question, for the services rendered between March 28, 2005 and April 1, 2005, was dated June 29, 2005, far in excess of the forty-five (45) days now required by Insurance Department Regulations 11 N.Y.C.R.R. §§ 65-1.1 and 65-2.4 and that a denial based thereon was mailed to the Plaintiff on July 19, 2005. The Defendant argues, based thereon, that the Plaintiff’s motion must be denied and that the Defendant’s cross-motion must be granted.

During oral argument on this motion, both sides conceded that the determination of these motions will depend upon the sufficiency of the Defendant’s proof of mailing of its denial. Counsel for the Plaintiff conceded that if the Defendant’s proof of mailing is sufficient, the Plaintiff’s motion would have to be denied and the Defendant’s cross-motion granted. Conversely, counsel for the Defendant conceded that if the Defendant’s proof of mailing is insufficient the Plaintiff’s motion would have to be granted and the cross-motion denied.

The Defendant’s proof of mailing consists of Ms. Yuengling’s statement that she is [*3]“thoroughly familiar with LIBERTY MUTUAL INSURANCE COMPANY’S mailing practices and procedures through personal training and experience in document production and mailroom operation and through [her] personal observation of the execution of said mailing practices and procedures[,]” (Yuengling Affidavit 3/14/07, ¶ 12) along with her description of those mailing practices and procedures, as follows:

13…. the no-fault documents mailed from DTS [Doc Tech Services] are initially created in the Liberty Mutual No-Fault Claims department. At the start of the business day, the DTS staff downloads all documents which were electronically forwarded from the No-Fault Claims department for printing and mailing the prior business day. Any documents forwarded on a Saturday are downloaded on the following Monday. Documents forwarded to the DTS department on the day before a holiday are downloaded on the following business day.

14.Once the documents are downloaded, a member of the DTS staff verifies that the documents are properly addressed to all parties, including parties to be carbon copied on the correspondence. The documents are then printed with extra carbon copies, if warranted, folded and inserted into envelopes containing windows which display the address of the intended recipient. The envelopes are then weighed and the proper postage is affixed. The envelopes are then placed in designated bins for pickup by the United States Postal Service, an employee of which appears at this office for pickup at 2:00 p.m. and 6:00 p.m. every business day.

15.Based on the foregoing, no-fault claims correspondence, including but not limited to requests for additional verification (delay letters) and no-fault denial of claim forms issued by Liberty Mutual in the regular course of its business are properly mailed to the intended recipient the first business day after the date which appears on the document itself.(Yuengling Affidavit 3/14/07, ¶¶ 13-15)

The “procedure” Ms. Yuengling describes is not “proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed,”Residential Holding Corp. v. Scottsdale Insurance Company, 286 AD2d 679, 729 NYS2d 776 (2nd Dept. 2001) Amaze Medical Supply Inc. v. Allstate Insurance Company, 3 Misc 3d 133(A), 787 NYS2d 675 (App. Term 2nd and 11th Jud. Dists. 2004), sufficient to raise a presumption of receipt of the denial by the Plaintiff. Stripped of all of its excess verbiage, the procedure Ms. Yuengling describes consists of nothing more than someone from Doc Tech Services folding the denial of claim form, placing it in an envelope, affixing postage thereto and placing the envelope in bins in the mail room for the United States Postal Service. There is, apparently, no record kept of the items mailed and/or no certificate of mailing against which the preparation and mailing of these denials are checked. Moreover, having “failed to specify either that it was [her] duty [*4]… to ensure compliance with said office procedure or that [she] had actual knowledge that said procedures were complied with” in this case, Contemp. Med. Diag. & Treatment, P.C. v. Government Employees Insuarnce, 6 Misc 3d 137(A), 800 NYS2d 344 (App. Term 2nd and 11th Jud. Dists. 2005), Ms. Yeungling’s affidavit “failed to make the requisite showing to establish that a proper denial was sent. (citations omitted).” Hospital for Joint Diseases v. Nationwide Mutual Insurance Company, 284 AD2d 374, 726 NYS2d 443 (2nd Dept. 2001); Andrew Carothers, M.D., P.C. v. Progressive Insuarnce Company, 14 Misc 3d 1210(A), 2006 WL 3843584 (Civ. Ct. Kings Co. 2006).

Accordingly, the Plaintiff’s motion for summary judgment is granted and the Defendant’s cross-motion for summary judgment is denied. The Plaintiff is entitled to the entry of a judgment in the principle sum of $12,734.17, plus interest from July 29, 2005, 11 N.Y.C.R.R. § 65-3.9; Smithtown General Hospital v. State Farm Mutual Automobile Insurance Company, 207 AD2d 338, 615 NYS2d 426 (2nd Dept. 1994); Hempstead General Hospital v. Insurance Company of North America, 208 AD2d 501, 617 NYS2d 478 (2nd Dept. 1994), along with statutory attorneys’ fees, costs and disbursements of this action.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

June 21, 2007

___________________________

ANDREW M. ENGEL

J.D.C.