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, is 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 to plaintiff 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 [*2]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 renewal motion was based to the motion court on its prior motion for summary judgment (see T&B Port Washington, Inc. v McDonough, 32 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 actually represent changes in the decisional law. Accordingly, the motion was properly denied.

Rudolph, P.J., Lippman and Molia, JJ., concur.
Decision Date: April 19, 2007

Supreme Court, Queens County

13956 2006

Duane A. Hart, J.

Plaintiff allegedly was injured in a motor vehicle accident in New York on March 17, 2006, while a passenger in a vehicle owned and operated by Silvanous Parchment. Defendant issued an insurance policy in Florida to Parchment, who purportedly was a resident of Florida, for that vehicle, which was registered in Florida. [*2]

On April 13, 2006, plaintiff submitted a claim for no-fault benefits to defendant insurer. On June 15, 2006, defendant insurer denied said claim on the ground that the policy was revoked for material misrepresentation.

In this action by plaintiff, among other things, for judgment declaring her rights under the policy, plaintiff moves for summary judgment determining that she is eligible for no-fault benefits and that defendant’s denial of such benefits was untimely. Defendant cross-moves for summary judgment on the ground that plaintiff’s injuries did not arise from a covered accident.

Defendant cancelled the policy on June 7, 2006, after it discovered Parchment made a material misrepresentation on the insurance application. The material misrepresentation was that Parchment resided and garaged his vehicle in Florida. An investigation by defendant after the subject accident revealed that Parchment resided and garaged his vehicle in New York.

Florida law allows for the retroactive cancellation of an insurance policy, where, as in this case, a material misrepresentation is contained within the insurance application. (See Penaranda v Progressive American Insurance Co., 747 So.2d 953 [Fla. 1999].) New York law does not allow retroactive cancellation. (See Vehicle and Traffic Law § 313; see also Matter of Insurance Co. of North America v Kaplun, 274 AD2d 293 [2000]; Olivio v Government Employees Insurance Co. of Washington, D.C., 46 AD2d 437 [1975].) There is no dispute that there is a conflict between the law of New York and the law of Florida. This conflict of law relating to an insurance policy must be resolved by application of the conflict of law rules relevant to contracts. (See Matter of Integon Insurance Co. v Garcia, 281 AD2d 480 [2001].) The courts apply the “center of gravity” or “grouping of contacts” inquiry to determine which State has the most significant contacts to the dispute. (See Matter of Eagle Insurance Co. v Singletary, 279 AD2d 56 [2000].) Significant contacts in a case involving a contract, in addition to the place of contracting, are the place of negotiation and performance, the location of the subject matter of the contract and the domicile or place of business of the contracting parties. (See Zurich Insurance Co. v Shearson Lehman Hutton, Inc., 84 NY2d 309 [1994]; see also Matter of Integon Insurance Co. v Garcia, supra; Matter of Eagle Insurance Co. v Singletary, supra.)

Applying the grouping of contacts inquiry to the facts here, the State of Florida has the most significant contacts with the parties and the contract. Defendant issued its insurance policy to Parchment in Florida, who purportedly was a resident of Florida, [*3]for a vehicle registered in Florida, which terms incorporated Florida law. The only connection between the policy and New York is that Parchment was driving the vehicle in New York at the time of the accident. Thus, Florida law is controlling under New York’s conflict of law rules. Moreover, Florida’s significant contacts with the subject contract and legitimate governmental interest in protecting its honest policyholders from bearing the burden of paying claims incurred by dishonest policyholders outweighs New York’s governmental interest in protecting innocent third parties from being deprived of insurance coverage, especially since New York statutes provide the means to ensure compensation to persons injured due to the fault of uninsured motorists within the state by requiring New York policyholders to purchase uninsured motorist coverage (see Insurance Law § 3420[f]) and establishing and providing insurance through the Motor Vehicle Accident Indemnification Corp. (See Insurance Law § 5201 et seq.)

Applying Florida law, defendant’s retroactive cancellation of the insurance policy due to Parchment’s material misrepresentation in his application for insurance was valid. Since the subject policy was void ab initio, defendant’s denial of plaintiff’s no-fault claim was proper. In addition, the timeliness of defendant’s denial of plaintiff’s no-fault claim is irrelevant as the denial was based upon lack of coverage. (See Central General Hospital v Chubb Group of Insurance Cos., 90 NY2d 195 [1997].)

Accordingly, it is ORDERED AND ADJUDGED that plaintiff’s motion for summary judgment and attorney’s fees is denied and defendant’s cross motion for summary judgment dismissing plaintiff’s complaint is granted; and it is further

ADJUDGED AND DECLARED that defendant is not obligated to provide “no-fault” coverage to plaintiff.

Dated: April 11, 2007J.S.C.

—[*1] Russo, Keane & Toner, LLP, New York, N.Y. (David S. Gould of counsel), for appellant.

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated January 5, 2006, which granted that branch of the motion of the respondent Daniel Davalos which was for reargument of the petition, which had been granted in an order of the same court dated August 15, 2005, and upon reargument, denied that branch of the petition which was to permanently stay arbitration, and, in effect, denied that branch of the petition which was, in effect, to add Allstate Insurance, Sebastian Gutierrez Meza, and Daniel Ashley as additional respondents.

Ordered that the order is modified, on the law, by deleting the provisions thereof which, upon reargument, denied that branch of the petition which was to permanently stay arbitration, and, in effect, denied that branch of the petition which was, in effect, to add Allstate Insurance, Sebastian Gutierrez Meza, and Daniel Ashley as additional respondents, and substituting therefor a provision granting that branch of the petition which was, in effect, to add Allstate Insurance, Sebastian Gutierrez Meza, and Daniel Ashley as additional respondents; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme [*2]Court, Kings County, for an evidentiary hearing on the issue of whether Allstate Insurance validly disclaimed coverage of the offending vehicle for the subject accident and for a new determination thereafter of that branch of the petition which was to permanently stay arbitration.

“Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision” (E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653, 654 [2007] [internal quotation marks omitted]; see Marini v Lombardo, 17 AD3d 545 [2005]; Carrillo v PM Realty Group, 16 AD3d 611 [2005]; Viola v City of New York, 13 AD3d 439 [2004]). Contrary to the petitioner’s contention, the Supreme Court providently exercised its discretion in granting reargument to consider whether its original determination to permanently stay arbitration was proper in light of a recent Court of Appeals decision that had been overlooked.

Furthermore, upon granting reargument, the court properly concluded that the petitioner was not entitled to a stay of arbitration based upon the failure of the respondent Daniel Davalos to provide notice of his claim for uninsured motorist benefits “as soon as practicable” as required by the supplementary uninsured/underinsured motorist (hereinafter SUM) endorsement of the subject insurance policy. Where, as here, timely notice of an accident has been given and the injured claimant has applied for no-fault benefits, an insurer cannot disclaim coverage under a SUM endorsement unless it establishes that it has been prejudiced by late notice of the SUM claim (see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468 [2005]; Matter of Nationwide Mut. Ins. Co. v Perlmutter, 32 AD3d 947 [2006]; Matter of State Farm Mut. Auto. Ins. Co. v Rinaldi, 27 AD3d 476 [2006]). Timely notice of the accident is “sufficient to promote the valid policy objective of curbing fraud or collusion” underlying notice requirements (see Rekemeyer v State Farm Mut. Auto. Ins. Co., supra at 475). Although the petitioner argues that the rationale of the Court of Appeals in Rekemyer v State Farm Mut. Auto. Ins. Co. (supra), should be limited to claims for underinsured motorist benefits, we find it equally applicable to claims for uninsured motorist benefits made pursuant to a SUM endorsement. Since the petitioner has not claimed any prejudice arising from the late notice of the SUM claim, the court correctly determined that it is not entitled to a stay of arbitration on this ground.

However, the court should have added Allstate Insurance (hereinafter Allstate) and the owner and operator of the offending vehicle as additional respondents. In support of its petition, inter alia, to permanently stay arbitration of Davalos’s claim for uninsured motorist benefits, the petitioner submitted the police accident report which contained the offending vehicle’s insurance code designation, and Allstate’s letter disclaiming coverage to the owner of the offending vehicle based upon his alleged noncooperation. This proof raised a question of fact as to whether Allstate validly disclaimed coverage of the offending vehicle (see Matter of New York Cent. Mut. Fire Ins. Co. v Hall, 7 AD3d 629 [2004]; Matter of Eagle Ins. Co. [Villegas—State Farm Mut. Auto. Ins. Co.], 307 AD2d 879 [2003]; Matter of Allstate Ins. Co. v Anderson, 303 AD2d 496 [2003]; Matter of Lumbermens Mut. Cas. Co. v Beliard, 256 AD2d 579 [1998]). Accordingly, we remit the matter to the Supreme Court, Kings County, for an evidentiary hearing on the issue of whether Allstate validly disclaimed coverage of the offending vehicle for the subject acccident (see Matter of New York Cent. Mut. Fire Ins. Co. v Hall, supra; Matter of Lumbermens Mut. Cas. Co. v Beliard, supra). Santucci, J.P., Krausman, Lifson and Dillon, JJ., concur.

Civil Court of the City of New York, Kings County

047582/06

Attorney for Plaintiff:

Ilona Finkelshteytn, Esq.

2503 65th Street

Brooklyn, New York 111204

Attorney for Defendant:

Jaffe & Nohavicka

40 Wall Street – 12th Floor

New York, NY 10005

Alice Fisher Rubin, J.

Plaintiff commenced this action against the defendant to recover first party no-fault benefits pursuant to CPLR 5106(a) of the Insurance Law and Regulation of the New York State Insurance Department (11 NYCRR Sect. 65-1.1 et. seq.), for medical services rendered.

Plaintiff moves for summary judgment as a matter of law on the grounds that the claimants assigned their “no fault” benefits to plaintiff pursuant to the terms of the insurance policies sold by defendant, and the timely submission of invoices and/or bills to defendant in accordance with the New York State Insurance Law, were not denied or paid within 30 days, pursuant to the New York State Insurance Law. Defendant cross-moves for summary judgment and opposes plaintiff’s motion on the grounds that the denial was timely and based upon the

revocation of the assignment by the assignor, Richard Proctor.

The rule governing summary judgment requires the proponent of a summary judgment motion to make a prima facie showing of entitlement to summary judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Tortello v. Carlin, 260 AD2d 201 [1st Dept., 1999]). The burden of proof, as well as persuasion rests with the proponent of the summary judgment motion. Once the burden is satisfied, the opponent of the motion must produce sufficient evidence, in admissible form, establishing the existence of a triable issue of fact. [*2]

Pursuant to both the Insurance Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim. (See, Insurance Law 5106[a]; 11 NYCRR 65.15[h]). Failure to pay benefits within the 30-day requirement renders the benefits “overdue,” and all overdue payments bear interest at a rate of 2% per month. In addition, the claimant is entitled to recover attorney’s fees where a “valid claim or portion” was denied or overdue. See, Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 N.Y.S.2d 536 (1997).

A plaintiff ordinarily establishes the submission of the claim forms by demonstrating that proof of proper mailing, which gives rise to the presumption that the claim forms were received by the addressee. The presumption may be created either by proof of actual mailing or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. See, Residential Holding Corp., v. Scottsdale Ins. Co., 286 AD2d 679 [2001].

The plaintiff has annexed the affidavit of Kristina Meledina, billing manager, of the assignee, which makes reference to the plaintiff’s standard office mailing practices and/or procedures. The affidavit is sufficient to establish plaintiff’s mailing of its claim forms.

In addition, the court finds that the plaintiff has established its prima facie case, inasmuch as the defendant’s denial of claim forms which are annexed to defendant’s opposition papers as Exhibit “A,” as well as plaintiff’s moving papers, establish the dates of defendant’s receipt of the claim forms. See, PDG Psychological, P.C., (Jones) v. Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op. 50246[U][AT 2nd & 11th Jud. Dists.].

Defendant opposes plaintiff’s motion and cross-moves for summary judgment on the grounds that the denial was timely, as well as the fact that the assignment was revoked by the assignor, Richard Proctor. In support of its cross-motion, the defendant annexes a copy of the letter it received from Richard Proctor, which indicates that he was in fact involved in a car accident on 6/4/05, that he was requesting to drop all claims and that he would be willing to be held responsible for all medical bills.

After careful consideration of the moving papers, supporting documents and opposition thereto, the court finds that plaintiff is entitled to summary judgment as a matter of law.

In order for a provider to receive direct payment from an insurer under the no-fault regulation, the claims must have been assigned to the provider pursuant to an assignment containing language required by the regulation (See, 11 NYCRR 65-3.11[b][2].).

Plaintiff has annexed a copy of assignment of benefits form, which was signed by the assignor, Richard Proctor on June 4, 2005. [See, Exhibit “1” to plaintiff’s moving papers]. The defendant does not argue the validity of the assignment of benefits form, and there is no indication that same was an issue which verification was requested. The applicable rules and regulations are as follows: [*3]

§65.3-11 – Direct Payments

(a) An insurer shall pay benefits for any element of loss, other than death benefits, directly to the applicant or, when appropriate, to the applicants parent or legal guardian or to any person legally responsible for necessities, or, upon assignment by the applicant or any of the aforementioned persons, shall pay benefits directly to providers of health care services as covered under section five thousand one hundred two (a)(1) of this article….Emphasis added.

(2)(d) If an assignment has been furnished an insurer, the assignor or legal representative of the assignor shall not unilaterally revoke the assignment after the services for which the assignment was originally executed were rendered. If the assignment is revoked for services not yet rendered, the assignor or leal representative shall provide written notification to the insurer that the assignee has been notified of the revocation.

The services rendered by plaintiff-provider were rendered on 6/17/05 and 6/27/05, all of which total $304.79. The assignor’s revocation letter which is addressed to defendant is dated 6/25/05. Section 65.3-11 states that the assignor may not unilaterally revoke the assignment after services for which the assignment was originally executed were rendered. Therefore, the assignor could not revoke the assignment as to those services rendered on or before 6/25/07. The regulation also states that if the assignment is revoked for services not yet rendered, the assignor or legal representative shall provide written notification to the insurer that the assignee has been notified of the revocation.

The defendant has not submitted to this court, and the record is void as to a letter from the assignor that the assignee was notified of the revocation. The letter which is annexed to defendant’s cross-motion is a letter which merely states that the assignor is “requesting to drop all claims.” The defendant’s proof is insufficient to establish its prima facie entitlement to summary judgment.

Accordingly, summary judgment is hereby awarded in favor of plaintiff and against defendant in the amount of $304.79, with interest at 2% per month from 7/22/05, costs and attorney’s fees. Defendant’s cross-motion is hereby denied.

This constitutes the order of this Court.

Court Attorney to notify.

Dated: Brooklyn, New York

March ______, 2007

______________________________

Alice Fisher Rubin, J.C.C. [*4]

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 (Kathy J. King, J.), dated December 27, 2005. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

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 an employee of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s employee stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s employee 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. The court granted plaintiff’s motion for summary judgment and this appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to plaintiff’s moving papers. Inasmuch as the affidavit submitted by plaintiff’s employee was insufficient to establish that said employee possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents [*2]annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff’s motion for summary judgment should have been denied.

To the extent defendant asks this court to search the record and grant it summary judgment, defendant is not entitled to such relief since, among other things, the record does not contain any proof that defendant’s denials were timely issued.

Pesce, P.J., Weston Patterson and Rios, 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 (Jack M. Battaglia, J.), entered November 18, 2005, deemed an appeal from a judgment entered on January 3, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 18, 2005 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion to dismiss the complaint, awarded plaintiff the sum of $55,272.72.

Judgment reversed without costs, the branch of the November 18, 2005 order which granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to dismiss the complaint for lack of subject matter jurisdiction. The court below granted plaintiff’s motion and denied defendant’s cross motion. The instant appeal by defendant ensued.

While plaintiff listed in its complaint under the heading “First Cause of Action” all three of its claims for no-fault benefits, the recovery of which was assigned to it by three different assignors, it is clear that all three claims were separate and distinct and each was within the Civil Court’s monetary jurisdictional limit of $25,000 (CCA 202, 211; see Karp v Manhattan Mtge. Co., Inc., 11 Misc 3d 142[A], 2006 NY Slip Op 50699[U] [App Term, 1st Dept]). Therefore, the court below properly denied defendant’s cross motion to dismiss the action for lack of subject [*2]matter jurisdiction.

On appeal, defendant contends that the affidavit by plaintiff’s corporate officer, 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. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer 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 (see Bath Med. Supply, 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, the judgment is reversed, the branch of the order entered November 18, 2005 which granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 03, 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 (Delores J. Thomas, J.), entered January 25, 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’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s officer was insufficient to submit proof in admissible form. The court below denied the motion on
the ground that plaintiff failed to make a prima facie case. Plaintiff appeals from so much of the order as denied its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer 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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see 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. [*2]

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 02, 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 (Bernard J. Graham, J.), entered January 17, 2006. The order, insofar as appealed from, 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 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]). 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, defendant’s attorney stated that defendant’s denial was based upon plaintiff’s assignor’s nonattendance at an examination under oath (EUO). As plaintiff [*2]correctly asserted, defendant was required to establish by proof in admissible form that the EUO scheduling letters were mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant submitted an affidavit from an administrative assistant who stated that the first request was forwarded to plaintiff’s assignor and that she forwarded a second request to plaintiff’s assignor. Her affidavit was insufficient because she did not state that she actually mailed the letters and since she did not set forth proof of defendant’s office practice or procedure designed to ensure that items are properly addressed and mailed, it did not give rise to a presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Accordingly, because defendant did not
establish that the EUO scheduling letters were mailed, defendant failed to raise a triable issue of fact.

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.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 02, 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 an employee of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s employee 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 failed to make a prima facie showing because the affidavit of plaintiff’s employee failed to set forth her job duties or the basis of her personal knowledge, if any, of plaintiff’s billing procedures so as to lay a foundation for the admission of plaintiff’s bills as business records. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s employee was insufficient to establish that said employee possessed personal knowledge of plaintiff’s business 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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New [*2]York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

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

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 02, 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 (Dolores L. Waltrous, J.), entered January 6, 2006. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

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 an employee of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s employee stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s employee 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. The court granted plaintiff’s motion for summary judgment and this appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to plaintiff’s moving papers. Inasmuch as the affidavit submitted by plaintiff’s employee was insufficient to establish that said employee possessed personal knowledge of plaintiff’s practices [*2]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 Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff’s motion for summary judgment should have been denied.

To the extent defendant asks this court to search the record and grant it summary judgment, defendant is not entitled to such relief since, among other things, the record does not contain any proof that defendant’s denials were timely issued.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 02, 2007