Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52515(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 (George J. Silver, J.), entered July 11, 2005. The order, insofar as appealed from as limited by defendant’s brief, granted plaintiffs’ motion for summary judgment with respect to the claims for services rendered to assignors Alexander Ryabchenko, Martin Sarnacki and Ronka Weislaw .

Order, insofar as appealed from, reversed without costs and plaintiffs’ motion for summary judgment with respect to the claims for services rendered to assignors Alexander Ryabchenko, Martin Sarnacki and Ronka Weislaw denied.

In an action to recover assigned first-party no-fault benefits, a plaintiff establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms, setting forth the fact and amounts of the losses sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Herein, plaintiffs failed to establish that they submitted the claim forms to defendant. Plaintiffs’ proof, consisting of the affidavit of Samira Ovshayev, who described herself as a principal of Magnezit Medical Care, P.C., made no reference to said plaintiff’s standard office mailing practices or procedures, and the bare averment that the “required proof of claims [was submitted] in a timely manner” and that bills for the services rendered to the respective assignors were mailed to defendant on given dates did not establish that she had personal knowledge that the claim forms were timely mailed to defendant (see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [*2][2005]). While a defendant insurer’s denial of claim forms, indicating the dates on which the claims were received, can be deemed adequate to establish that defendant received the claims (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]), there are discrepancies herein between the claim
forms and denial of claim forms which are not explained on the record. Likewise, defendant’s letters to plaintiff did not set forth with sufficient particularity the specific claims to which the letters referred. Accordingly, since the denial of claim forms and letters are inadequate to establish receipt of the claim forms, and plaintiffs did not otherwise provide proof of proper mailing of the claim forms, the order of the court below is reversed and plaintiffs’ motion for summary judgment is denied (see Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50473[U] [App Term, 2d & 11th Jud Dists]; 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]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 27, 2006