Boai Zhong Yi Acupuncture Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 52516(U))

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 August 16, 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 failed to establish a prima facie entitlement to summary judgment since it did not adequately establish that it submitted its claim form to defendant (see A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Here, the affidavit of plaintiff’s corporate officer and the proof of
mailing annexed thereto were insufficient to establish that plaintiff mailed its claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claim was actually mailed to defendant and, as such, is 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, plaintiff’s attempt to demonstrate defendant’s receipt of the claim in question by attaching to its moving
papers a delay letter from defendant is unavailing since said letter did not specifically refer to the claim at issue in that it did not set forth the amount of the claim (see Impulse Chiropractic, P.C. v Travelers Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 52371[U] [App Term, 2d & 11th Jud Dists]). Therefore, since plaintiff failed to establish its prima facie entitlement to summary judgment, the lower court properly denied its motion.

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