Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51065(U))

District Court of Nassau County, First District

27134/07

Attorneys for plaintiff: Law Offices of Robert E. Dash

Attorneys for defendant: Marshall & Marshall

Andrew M. Engel, J.

The Plaintiff commenced this action on July 26, 2007 seeking to recover no-fault first party benefits for health care services provided to its assignor between June 5, 2006 and September 19, 2006, following a motor vehicle accident of February 1, 2006. Issue was joined on or about September 5, 2007. The Defendant now moves for summary judgment pursuant to CPLR § 3212. The Plaintiff opposes the motion and cross-moves for summary judgment.

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). It is only thereafter incumbent upon the party opposing summary judgment to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do.” Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). The movant’s failure to make such a showing, regardless of the sufficiency of opposing papers, mandates the denial of a summary judgment motion. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985)

[*2]

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

The Defendant admits its receipt of the Plaintiff’s claim forms which are the subject of this action, and does not challenge their timeliness or the propriety. The Defendant’s motion is based, instead, upon seven (7) denial of claim forms, each denying the Plaintiff’s claims based upon a physical examination conducted by Thomas J. McLaughlin, D.C. on May 23, 2006, at the Defendant’s request. Dr. McLaughlin concluded that all acupuncture and chiropractic services following the date of his examination were not medically necessary.

The Defendant will be precluded from raising its defense of lack of medical necessity if it fails to demonstrate a timely and proper denial of the Plaintiff’s claim within thirty (30) days of its receipt. Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 NYS2d 536 (1997); Mt. Sinai Hospital v. Triboro Coach Incorporated, 263 AD2d 11, 699 NYS2d 77 (2nd Dept. 1999); Church Avenue Medical Care, P.C. v. Allstate Insurance Company, 189 Misc 2d 340, 731 NYS2d 582 (App. Term 2nd Dept. 2001); Struhl v. Progressive Casualty Insurance Company, 7 Misc 3d 138(A), 801 NYS2d 242 (App. Term 9th and 10th Jud. Dists. 2005) The threshold question presented on the Defendant’s motion, therefore, is whether or not the Defendant has tendered proper proof of mailing of its denial of claim forms.

As correctly and succinctly set forth in Presutto, L.M.T., P.C. v. Travelers Insurance Company, 17 Misc 3d 1121, 851 NYS2d 66 (Civ. Ct. NY Co. 2006):

There are three distinct methods to demonstrate proof of mailing. The first and simplest method is to provide an affidavit from an individual with personal knowledge of the actual mailing. The second is where an acknowledgment by the adverse party that it received the subject document serves as an admission. … The third and most common method is where the party provides proof of a standard office procedure, which ensures that documents are properly addressed and mailed. (emphasis in original)

In the matter sub judice, the Defendant, relying upon the first and third method stated above, seeks to establish the required proof of mailing with the affidavit of Laurie Absher, one of its Litigation Examiners.

Ms. Absher advises the court that she is “fully familiar with the facts herein based upon personal knowledge and review of the file that is maintained in the regular course of business by New York Central Mutual Fire Insurance Company[.]” [emphasis in original] (Absher Affidavit 1/9/08, p. 1) Specifically, with regard to the mailing of the Defendant’s denial of claim forms, Ms. Absher alleges that she has “personal knowledge that [her] office mailed same in accordance with its normal business practice and procedure[.]” (Absher Affidavit 1/9/08, p. 6) Nowhere in her affidavit does Ms. Absher indicate how she obtained this “personal knowledge.” Ms. Absher does not allege that she mailed these denials, that she saw them mailed, that she ever handled these denials or was actually involved, in any way, with their mailing. What Ms. Absher does say is that “[t]he file maintained by Defendant indicates that all of the Defendant’s mailing procedures and safeguards were followed for this claim.” (Absher Affidavit 1/9/08, p. 7) She further avers that she “reviewed the Defendant’s computer log, and they accurately reflect all activity that has occurred on the claim for Plaintiff’s bills for medical serivces [and that the] computer log accurately reflects information for this claim, including the date the bills were received and the date the no-fault denials were mailed.” (Absher Affidavit 1/9/08, p. 8-9) Knowledge obtained upon a review of files and computer records, however, is not, as Ms. Absher posits, “personal knowledge.”

Her conclusory statement of “personal knowledge” notwithstanding, it is clear from the [*3]foregoing that Ms. Absher has no personal knowledge of the actual mailing of the denial of claim forms. It is equally clear that Ms. Absher’s knowledge of any such mailing is limited to her alleged knowledge of her office’s mailing practices and procedures and her review of purported computer records, which are not submitted to this court. Given that Ms. Absher utterly fails to set forth the facts which form the basis for this alleged “personal knowledge,” her conclusory assertion of same is insufficient as a matter of law. See: Republic Western Insurance Company v. RCR Builders, Inc., 268 AD2d 574, 702 NYS2d 609 (2nd Dept. 2000); S & M Supply Inc. v. Allstate Insurance Company, 7 Misc 3d 130, 801 NYS2d 242 (App. Term 2nd and 11th Jud. Dists. 2005); Montefiore Medical Center v. Government Employees Insurance Company, 34 AD3d 771, 826 NYS2d 616 (2nd Dept. 2006); Struhl, M.D. v. Progressive Casualty Insurance Company, 7 Misc 3d 138, 801 NYS2d 242 (App. Term 9th and 10th Jud. Dists. 2005)

Ms. Absher also attempts to demonstrate the timely mailing of the Defendant’s denial of claim forms by describing what she alleges is a procedure “designed to ensure that all such correspondence is collected and personally delivered to the United States Postal service for mailing on the same day it is generated.” (Absher Affidavit 1/9/08, p. 7-8) To succeed using this method of proving mailing, Ms. Absher is required to describe “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); See also: New York and Presbyterian Hospital v. Allstate Insurance Co., 29 AD3d 547, 814 NYS2d 687 (2nd Dept. 2006)

The court first notes that, in a carefully worded paragraph, Ms. Absher attests that she is “familiar with the general business practices of New York Central today and in 2001. During 2001, as well as currently, it was/is New York Central’s general business practice to mail verifications and denials on the same date that they are generated.” [emphasis in original] (Absher Affidavit 1/9/08, p. 2) Conspicuously absent from Ms. Absher’s affidavit is any allegation that she is familiar with the Defendant’s record keeping or mailing practices as it existed in 2006, the year here in question. Ms. Absher clearly has not demonstrated her knowledge of such practices and procedures as they existed at the time here in question and cannot establish proper proof of mailing of the denials in question.

The above notwithstanding, the practice and procedure described by Ms. Absher, while it may be Defendant’s “standard office practice and procedure” Residential Holding Corp. v. Scottsdale Insurance Company, supra ., it is not one “used to ensure that items were properly addressed and mailed.” id.; See also: Nassau Insurance Company v. Murray, 46 NY2d 828, 414 NYS2d 117 (1978) [“office practice must be geared so as to ensure the likelihood that a notice … is always properly addressed and mailed.”]

In essence, Ms. Absher describes the procedure as an employee taking the denial form, placing it in an envelope which is in turn placed in a bin in a central location in the office, then taken to a bin in the Defendant’s mail room, the contents of which are subsequently taken from the mail room to the post office. When stripped of all of its excess verbiage, it appears that the Defendant’s mailing procedure is to place the denial form in an envelope and to have someone subsequently mail same. The fact that the envelope containing the denial form is handled by a number of the Defendant’s employees and makes a number of stops in the office before it is allegedly taken to the post office in no way ensures that the items are properly mailed.

Absent from the Defendant’s alleged office procedure is any indication that there exists a practice of comparing the names and addresses on the denial forms with that of the Plaintiff’s [*4]billing, or the existence of a mailing list used to compare the names and addresses on the denial forms with the items mailed, or whether a list is maintained indicating the number of denial forms generated on a given day along with some identification of the matters in which the denial forms were generated, or whether anyone routinely checked to see if the total number of envelopes mailed matched the number of denial forms generated on a particular day, or a certificate of mailing identifying the items allegedly delivered to the United States Postal Service. See: Matter of Lumbermens Mut. Casualty Co., 135 AD2d 373, 521 NYS2d 432 (1st Dept.1987); State-Wide Insurance Co. v. Simmons, 201 AD2d 655, 608 NYS2d 274 (2nd Dept.1994); Clark v. Columbian Mut. Life Insurance Co., 221 AD2d 227, 633 NYS2d 311 (1st Dept.1995); L.Z.R. Raphaely Galleries, Inc. v. Lumbermens Mutual Casualty Co., 191 AD2d 680, 595 NYS2d 802 (2nd Dept.1993) The use of any one of these practices or procedures would ensure the document’s routine mailing. Without such safeguards, notwithstanding the fact that the Defendant follows the same procedure, there is no way for the Defendant, or the court for that matter, to determine whether or not, or to even presume that all denial forms generated by the Defendant on a particular day are actually mailed. The procedure Ms. Absher describes does not take into account the possibility that an item of mail might get misplaced or lost anywhere between the desk at which it is printed and the United States Post Office. If this were to occur, under the practices and procedures described by Ms. Absher, no one would know and the Defendant would have no way of tracking the lost denial forms. Compare: Presutto v. Travelers Insurance Company, supra .

Ms. Absher’s statements to the effect that “[t]he file maintained by the Defendant indicates that all of Defendant’s mailing procedures described are carried out in accordance with the procedures set forth above[,]” (Absher Affidavit 1/9/08, p. 7) and “I reviewed the Defendant’s computer log, and they accurately reflect … information for this claim, including the date the bills were received and the date the no-fault denials were mailed[,] (Absher Affidavit 1/9/08, p. 8-9) are, themselves, insufficient to establish the mailing of Defendant’s denial of claim forms. Westchester Medical Center v. Countrywide Insurance Company, 45 AD3d 676, 846 NYS2d 230 (2nd Dept. 2007); Hospital for Joint Diseases v. Nationwide Mutual Insurance Company, 284 AD2d 374, 726 NYS2d 443 (2nd Dept. 2001); Careplus Medical Supply Inc. v. Travelers Home and Marine Insurance Co., 7 Misc 3d 133(A), 801 NYS2d 231 (App.Term 2nd and 11th Jud. Dists. 2005) Such statements are conclusory and unsupported by any evidentiary proof. Moreover, these statements, based upon files and computer records which are not before this court, are hearsay and are not in admissible form. If the Defendant has such files and computer records, which adequately confirm the mailing of the denial of claim forms, then the Defendant has the obligation lay a proper foundation for such records, pursuant to CPLR §§ 4518 and 4539, and tender them in admissible form.

Even if the Defendant had offered adequate proof of mailing, the Defendant has failed to properly demonstrate the lack of medical necessity as a matter of law. The Defendant’s admission of receipt of the Plaintiff’s claims and the absence of any challenge by the Defendant to either the propriety or timeliness of same establishes the medical necessity of the subject services in the first instance. All County Open MRI & Diag. Radiology P.C. v. Travelers Insurance Co., 11 Misc 3d 131(A), 815 NYS2d 496 (App. Term 9th and 10th Jud. Depts. 2006); Damadian MRI in Elmhurst, P.C. v. Liberty Mutual Insurance Co., 2 Misc 3d 128(A), 784 NYS2d 919 (App. Term 9th and 10th Jud. Dists. 2003). Given the presumption of medical necessity which attaches to the Defendant’s admission of the Plaintiff’s timely submission of [*5]proper claim forms, the burden shifts to the Defendant to submit proof in admissible form establishing that the treatment in question was not necessary. Amaze Medical Supply Inc. v. Eagle Insurance Company, 2 Misc 3d 128(A), 784 NYS2d 918 (App. Term 2nd and 11th Jud. Dists. 2003); West Tremont Medical Diagnostic, P.C. v. GEICO Insurance Company, 13 Misc 3d 131(A), 824 NYS2d 759 (App. Term 2nd and 11th Jud. Dists. 2004).

The Defendant relies upon the report of Dr. Thomas J. McLaughlin, who conducted a physical examination of the Plaintiff’s assignor on May 23, 2006, in an effort to establish the lack of medical necessity for the treatment in question. Dr. McLaughlin’s report, however, is “[f]atally missing … any mention of the applicable generally accepted medical/professional standard and the plaintiff’s departure therefrom.” American Chinese Acupuncture, P.C. v. State Farm Mutual Automobile Insurance Company, 18 Misc 3d 1125, 2008 NY Slip Op. 50205 (Civ. Ct. Richmond Co. 2008) The examination by the Defendant’s doctor notwithstanding, “its denial based on lack of necessity, … , was Conclusory [sic] unsupported by … an independent medical examination, setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection (e.g. Choicenet Chiropractic P.C. v. Allstate Ins. Co., NYLJ, Mar. 7, 2003 [App Term, 2d & 11th Jud Dists]).” Amaze Medical Supply Inc. v. Eagle Insurance Company, supra .; See also: A.B. Medical Services PLLC v. Liberty Mutual Insurance Company, 10 Misc 3d 128, 809 NYS2d 480 (App. Term 2nd and 11th Jud. Dists. 2005)

Additionally, Dr. McLaughlin’s opinion is rebutted by the affidavit of Peter M. Swerz, D.C., submitted on behalf of the Plaintiff. Dr. Swerz, who treated the Plaintiff, sets forth details of his examination and findings and concludes, albeit in similarly conclusory fashion, that based thereon “the procedures performed were medically necessary to treat the injuries sustained by Ms. Lopez.” (Swerz Affidavit 3/24/08, ¶ 5e) At the very least, these conflicting affidavits raise an issue of fact which, if for no other reason, would require the denial of the Defendant’s motion.

Based upon all of the foregoing, the Defendant’s motion for summary judgment is denied.

PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

To the extent that this court (Engel, J.) has previously held that “[t]o make out a prima facie case, the Plaintiff would be obligated to establish the proper submission of the bills in question and the Defendant’s failure to either pay or properly deny same within thirty (30) days of receipt thereof[,]” Maple Medical Acupuncture, P.C. v. Motor Vehicle Accident Indemnification Corporation, 15 Misc 3d 1124, 841 NYS2d 219 (Dist. Ct. Nassau Co. 2007); See also: Elmont Open MRI & Diagnostic Radiology, P.C. v. Country-Wide Insurance Co., 15 Misc 3d 552, 830 NYS2d 886 (Dist. Ct. Nassau Co. 2007), these decisions should not be followed. While, certainly, that is one of the ways a plaintiff may make out a prima facie casein a no-fault first party benefits case, See: Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 NYS2d 536 (1997); Hospital for Joint Diseases v. New York Central Mutual Fire Insurance Company, 44 AD3d 903, 844 NYS2d 371 (2nd Dept. 2007); Nyack Hospital v. State Farm Mutual Automobile Insurance Company, 8 AD3d 250, 777 NYS2d 700 (2nd dept. 2004), it is not the prima facie threshold a plaintiff must meet to succeed when moving for summary judgment or at trial. If it were, in cases where a timely denial was served, it would be impossible for a plaintiff to ever make out a prima facie case.

While some courts have held that a properly completed claim form alone establishes a plaintiff’s prima facie case in no-fault first party benefits cases, See: Damadian MRI In Elmhurst, [*6]P.C. v. Liberty Mutual Insurance Company, supra .; Amaze Medical Supply Inc. v. Eagle Insurance Company, supra .; King’s Medical Supply, Inc. v. Hereford Insurance Company,5 Misc 3d 55, 785 NYS2d 270 (App. Term 9th and 10th Jud. Dists. 2004), it is now widely recognized that plaintiffs establish “a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received and that payment of no fault benefits was overdue (citations omitted).” Mary Immaculate Hospital v. Allstate Insurance Company, 5 AD3d 742, 774 NYS2d 564 (2nd Dept. 2004); See also: A.B. Medical Services, PLLC v. Liberty Mutual Insurance Company, 39 AD3d 779, 835 NYS2d 614 (2nd Dept. 2007); Westchester Medical Center v. AIG, Inc., 36 AD3d 900, 829 NYS2d 180 (2nd Dept. 2007); New York & Presbyterian Hospital v. American Transit Insurance Company, 45 AD3d 822, 846 NYS2d 352 (2nd Dept. 2007); New York and Presbyterian Hospital v. Countrywide Insurance Company, 44 AD3d 729, 843 NYS2d 662 (2nd Dept. 2007); New York and Presbyterian Hospital v. Selective Insurance Company of America, 43 AD3d 1019, 842 NYS2d 63 (2nd Dept. 2007); Countrywide Insurance Company v. 563 Grand Medical, P.C., 855 NYS2d 439 (1st Dept. 2008); Ultra Diagnostics Imaging v. Liberty Mutual Insurance Company, 9 Misc 3d 97, 804 NYS2d 532 (App.Term 9th and 10th Jud. Dists 2005);Shtarkman v. Allstate Insurance Company, 8 Misc 3d 129(A), 801 NYS2d 781(App.Term 2nd & 11th Jud. Dists. 2005); Psychological Practice, P.C. v. Kemper Auto & Home Insurance Company, 12 Misc 3d 137(A), 824 NYS2d 766 (App.Term 2nd & 11th Jud. Dists. 2006); AVA Acupuncture, P.C. v. GEICO General Ins. Co., 17 Misc 3d 41, 844 NYS2d 570 (App.Term 2nd & 11th Dist. 2007); Andrew Carothers, M.D., P.C. v. New York Central Mutual Fire Insurance Company, 16 Misc 3d 136(A), 847 NYS2d 900 (App.Term 2nd & 11th Jud. Dists. 2007); PDG Psychological, P.C. v. Lumbermans Mutual Casualty Co., 16 Misc 3d 131(A), 841 NYS2d 828 (App.Term 2nd & 11th Jud. Dists. 2007); Be Well Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 139(A), 2008 NY Slip Op. 50346 (App.Term 2nd & 11th Jud. Dists. 2008); Boris Kleyman, P.C. v. Kemper Insurance Company, 19 Misc 3d 138(A), 2008 NY Slip Op. 50877 (App.Term 2nd & 11th Jud. Dist. 2008); Mani Medical, P.C. v. New York Central Mutual Fire Insurance Company, 19 Misc 3d 128(A), 2008 NY Slip Op. 50508 (App.Term 2nd & 11th Jud. Dist. 2008); R.J. Professional Acupuncturist, P.C. v. Travelers Property Casualty Insurance Company, 19 Misc 3d 130(A), 2008 NY Slip Op. 50541 (App.Term 2nd & 11th Jud. Dists. 2008) Insurance Department Regulation 11 N.Y.C.R.R. § 65-3.8(a)(1) unequivocally defines “overdue” benefits as those “not paid within 30 calendar days after the insurer receives proof of claim ….” Insurance Law § 5106(a) similarly defines “overdue” benefits as those “not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained.” Citing these sections, the Court of Appeals has also recognized that “[f]ailure to pay benefits within the 30-day requirement renders benefits overdue,’ ….” Presbyterian Hospital in the City of New York v. Maryland Casualty Company, supra . at 278, 660 NYS2d 536, 537 (1997); See also: Fair Price Medical Supply Corp. v. Travelers Indemnity Company, 42 AD3d 277, 837 NYS2d 350 (2nd Dept. 2007) [“Amounts not paid within the 30-day time frame are overdue,” ….”]; New York and Presbyterian Hospital v. Selective Insurance Company of America, supra .

Once a plaintiff properly establishes the proper and timely submission of its claim to a defendant and that the claim is “overdue” the burden shifts to the defendant to establish a triable issue of material fact. Psychological Practice, P.C. v. Kemper Auto & Home Insurance Company, 12 Misc 3d 137(A), 824 NYS2d 766 (App.Term 2nd & 11th Jud. Dists. 2006); AVA Acupuncture, P.C. v. GEICO General Ins. Co., supra . A defendant may do so by providing [*7]proof, in evidentiary form, that it either paid the claim or properly denied same within thirty (30) days of its receipt. The failure to properly demonstrate payment or denial within thirty (30) days notwithstanding, a defendant may also raise triable issues of fact by presenting proof, in evidentiary form, regarding any non-precludable defenses. See: Central General Hospital v. Chubb Group of Insurance Companies, 90 NY2d 195, 659 NYS2d 246 (1997); Presbyterian Hospital in the City of New York v. Maryland Casualty Company, supra . If a defendant does any of this, raising triable issues of fact, summary judgment will be denied to a plaintiff. See: Psychological Practice, P.C. v. Kemper Auto & Home Insurance Company, supra . [after plaintiff demonstrated benefits were overdue the defendant demonstrated, by proof in admissible form, that it timely served a denial of claim based upon a defense of lack of medical necessity, raising issues of fact requiring the denial of plaintiff’s motion and defendant’s cross-motion for summary judgment] To the same effect see Andrew Carothers, M.D., P.C. v. New York Central Mutual Fire Insurance Company, supra .; A.B. Medical Services, PLLC v. Liberty Mutual Insurance Company, supra .; New York & Presbyterian Hospital v. American Transit Insurance Company Where, however, a defendant fails to submit such sufficient proof summary judgment will be granted. See: Westchester Medical Center v. AIG, Inc., supra . [after plaintiff demonstrated benefits were overdue the defendant’s opposition was insufficient to raise a triable issue of fact as to the issuance of a proper and timely denial resulting in the granting of summary judgment to the plaintiff] To the same effect see PDG Psychological, P.C. v. Lumbermans Mutual Casualty Co., supra .

Applying these principles to the matter before this court, the affidavit of Dr. Swerz establishes, prima facie, that the Plaintiff’s claims were timely submitted and that the claims are overdue. Dr. Swerz has laid a proper business record foundation, See: Dan Medical, P.C. v. New York Central Mutual Fire Insurance Company, 14 Misc 3d 44, 829 NYS2d 404 (App. Term 2nd & 11th Jud. Dists. 2006); Fortune Medical, P.C. v. Allstate Insurance Co., 14 Misc 3d 136, 836 NYS2d 492 (App. Term 9th & 10 Jud. Dists. 2007); Ontario Medical, P.C. v. Sea Side Medical, P.C., 15 Misc 3d 129, 2007 WL 926349 (App. Term 9th & 10 Jud. Dists. 2007); V.S. Medical Services, P.C. v. One Beacon Insurance, 14 Misc 3d 142, 836 NYS2d 504 (App. Term 2nd & 11th Jud. Dists. 2006), for the admission of the “properly completed claim form[s], which suffice[] on [their] face to establish the particulars of the nature and extent of the injuries and [health benefits] received and contemplated’ (11 NYCRR § 65-1.1), and the proof of the fact and amount of loss sustained’ (Insurance Law § 5106[a])[.]” Amaze Medical Supply Inc. v. Eagle Insurance Company, 2 Misc 3d 128, 784 NYS2d 918 (2nd and 11th Jud. Dist. 2003); Damadian MRI In Elmhurst, P.C. v. Liberty Mutual Insurance Company, 2 Misc 3d 128(A), 784 NYS2d 919 (App. Term 9th and 10th Jud. Dists. 2003) Additionally, while the Plaintiff fails to provide proper proof of mailing of the claims in issue, the Defendant admits their timely receipt by submitting copies date-stamped received, thereby curing any defect in the Plaintiff’s proof of mailing. Prestige Medical & Surgical Supply Inc. v. Clarendon National Insurance Company, 13 Misc 3d 127(A), 824 NYS2d 758 (App. Term 2nd and 11th Jud. Dists. 2006); Magnezit Medical Care, P.C. v. New York Central Mutual Fire Ins. Co., 12 Misc 3d 144(A), 824 NYS2d 763 (App. Term 2nd and 11th Jud. Dists. 2006) Dr. Swerz further alleges that these claims have not been paid.

In the face of the Plaintiff’s prima facie demonstration of its right to the relief requested, to avoid summary judgment the Defendant must come forward with proof in evidentiary form establishing the timely service of a proper denial or some other valid reason for having failed to [*8]pay these claims. As discussed at length herein above, the Defendant has failed to do so.

Accordingly, the Plaintiff’s cross-motion for summary judgment is granted.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

May 29, 2008

___________________________

Andrew M. Engel

J.D.C.