Mega Supply & Billing, Inc. v AIU Ins. Co. (2007 NY Slip Op 50687(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 (Bernard J. Graham, J.), entered January 17, 2006. The order, insofar as appealed from, 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 a calculation of statutory interest and an assessment of attorney’s fees.

In an action to recover first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted the claim, setting forth the fact and the amount of the loss sustained, and that payment
of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

In opposition to plaintiff’s motion, defendant’s attorney stated that defendant’s denial was based upon plaintiff’s assignor’s nonattendance at an examination under oath (EUO). As plaintiff [*2]correctly asserted, defendant was required to establish by proof in admissible form that the EUO scheduling letters were mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant submitted an affidavit from an administrative assistant who stated that the first request was forwarded to plaintiff’s assignor and that she forwarded a second request to plaintiff’s assignor. Her affidavit was insufficient because she did not state that she actually mailed the letters and since she did not set forth proof of defendant’s office practice or procedure designed to ensure that items are properly addressed and mailed, it did not give rise to a presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Accordingly, because defendant did not
establish that the EUO scheduling letters were mailed, defendant failed to raise a triable issue of fact.

In view of the foregoing, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below 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 and Rios, JJ., concur.
Decision Date: April 02, 2007