A.B. Med. Servs. PLLC v USAA Cas. Ins. Co. (2004 NY Slip Op 51682(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff, as limited by its brief, from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered May 23, 2003, as denied that branch of its motion seeking summary judgment in the sum of $2,176.30.

Order, insofar as appealed from, unanimously reversed without costs, plaintiff’s motion for summary judgment granted to the extent of awarding it partial summary judgment in the principal sum of $2,176.30, and matter remanded to the court below for the calculation of statutory interest and assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services provided to its assignor for injuries allegedly sustained in a motor vehicle accident, and thereafter moved for summary judgment in the sum of $4,366.28. Upon a review of the record, we find that plaintiff established its prima facie entitlement to summary judgment on its claims for $1,198.82, $795.30 and $182.18, by showing that it submitted properly completed claim forms to defendant (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]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). [*2]

With respect to the claim for $1,198.82, the affidavit of plaintiff’s “practice and billing manager” in which she stated that she herself mailed the claim form from the local post office was sufficient to give rise to a presumption that the claim form was received. Defendant’s mere denial of receipt, in the form of an affirmation of counsel, standing alone, was insufficient to overcome the presumption of receipt which attaches to items which are properly mailed (see Kihl v Pfeffer, 94 NY2d 118 [1999]). Inasmuch as plaintiff, in annexing the certificate of mailing to its reply papers, did not seek to introduce new arguments or grounds in support of the motion, and was merely
attempting to respond to defendant’s claim of nonreceipt, the court below should have considered the reply. Having failed to rebut the presumption of receipt and to pay or deny the claim within the 30-day period prescribed by 11 NYCRR 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]), summary judgment with respect to this claim should have been granted.

With respect to the claims for $795.30 and $182.18, defendant’s denial was based on plaintiff’s assignor’s failure to attend scheduled independent medical examinations (IMEs). Although defendant had the right to request attendance at IMEs scheduled prior to the insurer’s receipt of plaintiff’s proofs of claim (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op______ [decided herewith]), it failed to establish by competent evidence that it did so. Defendant’s opposition papers consisted of an affirmation of defense counsel who was without personal knowledge of the facts (see Rue v Stokes, 191 AD2d 245 [1993]). Defendant did not submit proof of actual mailing of the letters requesting IMEs (see e.g. Presbyterian Hosp. In City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]) nor did defendant create a presumption of mailing by describing the standard office practice or procedure used by defendant to ensure that such letters were properly addressed and mailed on the dates claimed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Therefore, summary judgment as to these claims was likewise appropriate.

We note that the insurance regulations do not require that the signature of the assignor on the assignment of benefits form be authenticated. In any event, the insurer’s failure to allege in its claim denial form any other alleged deficiencies in the assignment of benefits form constitutes a waiver of any defenses with respect thereto (see Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665 [U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest due on $2,176.30, that portion of the claims for which summary judgment is granted, an assessment of attorney’s fees due on $2,176.30, pursuant to Insurance Law § 5106 [a] and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: December 22, 2004