December 15, 2006

Mega Supply & Billing, Inc. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52504(U))

Headnote

The relevant facts considered by the court were that Mega Supply & Billing, Inc. was seeking to recover first-party no-fault benefits for medical supplies furnished to its assignor. The main issue decided was whether Mega Supply & Billing, Inc. had established a prima facie entitlement to summary judgment, and if New York Central Mutual Fire Insurance Co. had properly denied the claim. The holding of the case was that Mega Supply & Billing, Inc. did not establish a prima facie entitlement to summary judgment, as it did not prove the mailing of the subject claim. Additionally, New York Central Mutual Fire Insurance Co. failed to establish that its claim denial form was mailed within the prescribed 30-day period, and their cross motion for summary judgment was properly denied. Consequently, the order was affirmed without costs.

Reported in New York Official Reports at Mega Supply & Billing, Inc. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52504(U))

Mega Supply & Billing, Inc. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52504(U)) [*1]

Mega Supply & Billing, Inc. v New York Cent. Mut. Fire Ins. Co.

2006 NY Slip Op 52504(U) [14 Misc 3d 128(A)]

Decided on December 15, 2006

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2005-1852 K C. NO. 2005-1852 K C

Mega Supply & Billing, Inc. a/a/o Ganesh P. Mohabir, Appellant-Respondent,
against
New York Central Mutual Fire Insurance Co., Respondent-Appellant.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 17, 2005. The order denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider did not establish a prima facie entitlement to summary judgment because it failed to prove mailing of the subject claim (cf. Mary Immaculate
Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 51701[U] [App Term, 2d & 11th Jud Dists]). The deficiency was not cured by defendant’s denial of claim form attached to plaintiff’s papers since it failed to set forth the amount of the claim or otherwise establish that it related to the subject claim. Accordingly, plaintiff failed to shift the burden to defendant upon its motion for summary judgment.

With respect to defendant’s cross appeal from so much of the order as denied its cross motion for summary judgment, defendant failed to establish that its claim denial form was mailed within the prescribed 30-day period. The affidavit of defendant’s claims representative was insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the denial was actually timely mailed. Nor did the affidavit contain a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of [*2]mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 574 [2006]; Nyack Hosp. v Metropolitan Prop & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, defendant’s cross motion for summary judgment was
properly denied since defendant failed to establish that the proffered defense was not precluded.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

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

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to 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: December 15, 2006