A.T. Med., P.C. v American Tr. Ins. Co. (2008 NY Slip Op 51853(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeals from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered May 23, 2006, and from a judgment of the same court entered December 26, 2006. The order granted plaintiff’s motion for summary judgment. The judgment, entered pursuant to the May 23, 2006 order, awarded plaintiff the principal sum of $7,791.06.

Appeal from order dismissed.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

At the outset we note that the appeal from the order entered May 23, 2006 is dismissed since the right of direct appeal therefrom terminated with the entry of the judgment (Matter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeal from the order are brought up for review on the appeal from the judgment.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing, inter alia, that plaintiff did not make a prima facie showing because the affidavit executed by its corporate officer did not establish that the claims were submitted to defendant. The court granted plaintiff’s motion for summary judgment, and a judgment was subsequently entered. This appeal by defendant ensued.

A provider establishes a prima facie entitlement to summary judgment by proof that it submitted a 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]). A provider generally establishes the submission of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim [*2]form was 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, 680 [2001]). Here, the affidavit of plaintiff’s corporate officer and the post office ledger annexed thereto were insufficient to establish that plaintiff mailed the claims to defendant (see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; IVB Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 126[A], 2006 NY Slip Op 51660[U] [App Term, 2d & 11th Jud Dists 2006]). Moreover, plaintiff’s attorney’s affirmation consisted of allegations by a person without personal knowledge that the claims were actually mailed to defendant and, as such, is unsubstantiated hearsay which has no probative value (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455 [2006]). In addition, as argued by defendant, the affidavit by plaintiff’s corporate officer, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers (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 failed to make a prima facie showing of its entitlement to summary judgment. Consequently, plaintiff’s motion for summary judgment is denied.

In view of the foregoing, we do not reach defendant’s remaining contention.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008