Fair Price Med. Supply Corp. v Liberty Mut. Ins. Co. (2006 NY Slip Op 51438(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 (Eileen Nadelson, J.), entered March 17, 2005. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff commenced this action to recover $1,222.95 in first-party no-fault benefits for medical supplies furnished to its assignor. Thereafter, plaintiff moved for summary judgment. In an affirmation in opposition, defendant’s attorney argued that plaintiff failed to make out a prima facie case entitling it to summary judgment.

The deficiency in plaintiff’s moving papers concerning proof of its submission of its claim to defendant was cured by the denial of claim form, dated April 5, 2004, annexed to plaintiff’s moving papers, which states that defendant received the claim on January 30, 2004 (see e.g. A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]).

While defendant acknowledged in its denial of claim form that it received the requested verification from plaintiff on March 19, 2004 and the denial of claim form is dated April 5, 2004, defendant failed to establish that it timely mailed its denial of claim form since it failed to submit an affidavit by one with personal knowledge that the denial of claim form was timely mailed or an affidavit containing a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of the timely mailing of same (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]; S&M Supply Inc. v [*2]Progressive Ins. Co., 8 Misc 3d 138[A], 2005 NY Slip Op 51312[U] [App Term, 2d & 11th Jud Dists]). Since defendant failed to raise an issue of fact regarding whether it paid or denied the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including the defense, in effect, of excessive charges (cf. New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]; Triboro Chiropractic & Acupuncture v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50110[U] [App Term, 2d & 11th Jud Dists]). In light of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston Patterson J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 18, 2006