Contemporary Acupuncture P.C. v Travelers Ins. Co. (2006 NY Slip Op 51278(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Howard S. Miller, J.), dated May 9, 2005. The order denied plaintiff’s motion for summary judgment with leave to renew upon completion of discovery and granted defendant’s cross motion to compel discovery.

Appeal from so much of the order as granted defendant’s cross motion to compel discovery dismissed.

Order, insofar as reviewed, modified by providing that plaintiff’s motion for summary judgment is denied and by striking the provision thereof granting plaintiff leave to renew said motion; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff health care provider failed to establish a prima facie entitlement to summary judgment since it did not adequately establish that it submitted its claim forms 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]). Proof of proper mailing requires evidence of “actual mailing or . . . a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]), neither of which was demonstrated in the instant case (see generally New York & Presbyt. Hosp. v Allstate Ins. [*2]Co., ___ AD3d ___, 2006 NY Slip Op 03558). Plaintiff’s submissions in support of its motion, consisting of an affirmation of counsel without personal knowledge that the claim forms were actually mailed to defendant (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]), accompanied by an affidavit of a corporate officer of plaintiff provider, which made no specific reference to the appended claim forms or to proof of mailing, but which merely stated that his file included the original proof of mailing, were insufficient to establish submission of the claim forms (see Dr. Patil, M.D. v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 9th & 10th Jud Dists]). Moreover, plaintiff’s attempt to demonstrate defendant’s receipt of the claims in question by attaching to its reply affirmation a denial of claim form indicating that a claim was received by defendant is of no relevance since the denial form is not specifically referable to any of the instant claims. Under the circumstances, plaintiff’s motion for summary judgment should have been denied on the merits.

With respect to that branch of the order which granted defendant’s cross motion to compel discovery, since plaintiff failed to submit written opposition to the cross motion, said branch of the order is deemed to have been granted on default and the appeal therefrom by plaintiff, the defaulting party, must be dismissed (CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]).

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 29, 2006