SpineAmericare Med., P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 52035(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), entered September 6, 2005. The order denied plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $5,404.38, 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 an action to recover assigned first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of statutory claims forms, setting forth the fact and the amounts of the losses 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]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended forms to defendant. Plaintiff’s corporate officer did not state that he actually mailed the claims to the defendant nor did he describe his office’s standard practice or procedure designed to ensure [*2]that items are properly addressed and mailed (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). The certified mail receipts did not prove that the particular claims being sued upon were actually received by defendant (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 548). However, defendant’s letters to plaintiff, which were attached to plaintiff’s moving papers, adequately established that defendant received 10 of the 12 claims being sued upon (Ultra Diagnostics Imaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th Jud Dists 2005]). We note that we cannot consider the affidavit by plaintiff’s secretary regarding proof of actual mailing since it was improperly introduced for the first time in plaintiff’s reply papers submitted upon the motion for summary judgment (Fischer v Weiland, 241 AD2d 439 [1997]). Accordingly, plaintiff shifted the burden to defendant with regard to 10 of the 12 claims.

Since defendant’s opposition to plaintiff’s motion for summary judgment was based entirely on plaintiff’s alleged failure to make out a prima facie case, plaintiff’s motion for summary judgment should have been granted to the extent of awarding partial summary judgment as to the ten claims. Consequently, the matter is remanded to the court below for the calculation of the statutory interest and an assessment of attorney’s fees due on $5,404.38, the amount for which partial summary judgment is granted, pursuant to Insurance Law § 5106 and the regulations promulgated thereunder, and for all further proceedings on the remaining claims for $1,653.32.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: October 5, 2006