South Nassau Orthopedic Surgery and Sports Medicine, P.C. v Auto One Ins. Co. (2011 NY Slip Op 51300(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered February 24, 2009, deemed from a judgment of the same court entered June 2, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 24, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,406.89.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment, and denied defendant’s cross motion for summary judgment dismissing the complaint. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, the affidavit of Dr. Parker was sufficient to establish that the documents annexed to plaintiff’s motion papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]), and defendant conceded receipt of the claims in question (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). As plaintiff also established that its claims had not been timely paid or denied, plaintiff made a prima facie showing of its entitlement to judgment as a matter of law (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; cf. Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Defendant did not raise a triable issue of fact in opposition to plaintiff’s motion or establish its entitlement to summary judgment on its cross motion. In her affidavit, defendant’s litigation manager stated that she had begun working for defendant after the claim denial forms at issue had allegedly been mailed by defendant. As defendant did not establish actual mailing of [*2]the claim denial forms or defendant’s standard office practice and procedure for the mailing of the claim denial forms during the pertinent time period, defendant failed to show that its claim denial forms were timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Points of Health Acupuncture, P.C. v GEICO Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52445[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Defendant therefore failed to establish that its proferred defense in opposition to plaintiff’s motion and in support of its cross motion was not precluded. Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 07, 2011