PDG Psychological P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51432(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, Queens County (Edgar G. Walker, J.), entered May 1, 2005. The order denied plaintiff’s cross motion for summary judgment and awarded defendant $50 costs.

Order modified by providing that plaintiff’s cross motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $1,125.01 and by deleting the award of $50 costs to defendant, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment on its claim for $1,125.01, 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]). Contrary to defendant’s contention, its denial of claim form, indicating the date on which the claim was received, adequately established that plaintiff sent and that defendant received said claim (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]).

The defendant failed to establish that the denial for said $1,125.01 claim was mailed within the prescribed 30-day period (11 NYCRR 65-3.8 [c]). 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 mailed. Nor did the affidavit contain a [*2]sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., AD3d , 2006 NY Slip Op 03558; Nyack Hosp. v [*3]
Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Accordingly, defendant is precluded from raising its proffered defense of lack of medical necessity as to said $1,125.01 claim and plaintiff is entitled to summary judgment thereon.

Plaintiff’s moving papers were insufficient to raise a presumption that it submitted the claims in the amounts of $1,200.92 and $540.56. The affidavit of plaintiff’s corporate officer did not state that he actually mailed these claims, nor did he describe his office’s practice and procedure for mailing no-fault claims to insurers. The certified mail receipt does not prove that the particular claims were actually received where, as here, there is no evidence that these claims were mailed to defendant under these certified mail receipts and no signed certified mail return receipt card has been produced (see New York & Presbyt. Hosp. v Allstate Ins. Co., AD3d , 2006 NY Slip Op 03558, supra). Accordingly, plaintiff failed to shift the burden as to said claims.

Consequently, plaintiff’s motion should have been granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $1,125.01 and the matter is remanded to the court below for the calculation of statutory interest and an [*4]
assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims.

In view of the foregoing, the award of $50 costs to defendant should be stricken.

Rios and Belen, JJ., concur.

Golia, J.P., 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 17, 2006