May 29, 2012

Comprehensive Neurological Servs., PA v Tri-State Consumer Ins. Co. (2012 NY Slip Op 50950(U))

Headnote

The court considered the defendant-insurer's motion for summary judgment dismissing the complaint. The main issue decided was whether the plaintiff, Comprehensive Neurological Services, PA, was entitled to no-fault first-party benefits from the defendant, Tri-State Consumer Insurance Company. The court held that the defendant's motion for summary judgment should be granted, and the complaint dismissed, as the plaintiff failed to raise a material issue requiring a trial of its claim for the benefits. The court found that the affidavit provided by the plaintiff's medical billing supervisor did not provide sufficient evidence to indicate that the verification letters sent by the defendant had been documented as received. Therefore, the defendant's proof of proper mailing of the verification letters established a presumption of receipt that the plaintiff failed to overcome.

Reported in New York Official Reports at Comprehensive Neurological Servs., PA v Tri-State Consumer Ins. Co. (2012 NY Slip Op 50950(U))

Comprehensive Neurological Servs., PA v Tri-State Consumer Ins. Co. (2012 NY Slip Op 50950(U)) [*1]

Comprehensive Neurological Servs., PA v Tri-State Consumer Ins. Co.

2012 NY Slip Op 50950(U) [35 Misc 3d 144(A)]

Decided on May 29, 2012

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 29, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570980/11.

Comprehensive Neurological Services, PA a/a/o Aleksander Gurvich, Plaintiff-Respondent, – –
against
Tri-State Consumer Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), dated December 15, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), dated December 15, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In opposition to the defendant-insurer’s prima facie showing of entitlement to judgment as a matter of law, plaintiff failed to raise a material issue requiring a trial of its claim for no-fault first-party benefits. The affidavit of plaintiff’s medical billing supervisor, while explaining in general terms the office procedure followed by plaintiff in “document[ing] receipt of [verification] request[s] into our computer system,” failed to set forth any facts tending to indicate that the affiant or anyone else in plaintiff’s billing department in fact checked the “computer system” to ascertain whether the verification letters shown to have been sent by defendant had been “documented” as received. The professed status of plaintiff’s affiant as “custodian” of the case file was insufficient, on this record and without more, to overcome the presumption of receipt created by defendant’s proof of proper mailing of its verification letters (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur [*2]
Decision Date: May 29, 2012