October 28, 2013

Pomona Med. Diagnostic P.C. v Praetorian Ins. Co. (2013 NY Slip Op 51798(U))

Headnote

The court considered the issue of whether the defendant-insurer's verification letters were timely and properly mailed to the plaintiff in a first-party no-fault action. The main issue decided was whether the plaintiff raised a triable issue sufficient to withstand summary judgment dismissal. The court held that the affidavit of an employee of a third-party biller, who had no personal knowledge of the date the purported "verification compliance" letter was mailed to the defendant, and described in only the most general terms her office's mailing practices and procedures, was insufficient to raise an issue of fact. Therefore, the defendant was entitled to summary judgment dismissing the claim as premature.

Reported in New York Official Reports at Pomona Med. Diagnostic P.C. v Praetorian Ins. Co. (2013 NY Slip Op 51798(U))

Pomona Med. Diagnostic P.C. v Praetorian Ins. Co. (2013 NY Slip Op 51798(U)) [*1]

Pomona Med. Diagnostic P.C. v Praetorian Ins. Co.

2013 NY Slip Op 51798(U) [41 Misc 3d 133(A)]

Decided on October 28, 2013

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 28, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570194/13.

Pomona Medical Diagnostic P.C. a/a/o Remigio Narvaez, Plaintiff-Respondent,
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered March 24, 2010, as denied its cross motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Nelida Malave-Gonzalez, J.), entered March 24, 2010, insofar as appealed from, reversed, with $10 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

In opposition to defendant-insurer’s prima facie showing that its verification letters were timely and properly mailed, plaintiff failed to raise a triable issue sufficient to withstand summary judgment dismissal of this first-party no-fault action. The affidavit of an employee of a third-party biller, who had no personal knowledge of the date the purported “verification compliance” letter was mailed to defendant, and described in only the most general terms her office’s mailing practices and procedures, was insufficient to raise an issue of fact (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 677 [2007]). Accordingly, defendant is entitled to summary judgment dismissing the claim as premature (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 28, 2013