February 6, 2006
Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2006 NY Slip Op 51332(U))
https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-allstate-ins-co-2006-ny-slip-op-51332u/
- Decided
- February 6, 2006
- Citation
- 2006 NY Slip Op 51332(U) · 12 Misc 3d 139(A)
- Posture
- Summary judgment
- Legal questions
- Claimant's prima facie case on motions · Proof of mailing (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2006 NY Slip Op 51332(U))
| Vista Surgical Supplies, Inc. v Allstate Ins. Co. |
| 2006 NY Slip Op 51332(U) [12 Misc 3d 139(A)] |
| Decided on February 6, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-591 K C.
against
Allstate Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 4, 2005. The order denied plaintiff’s motion for summary judgment, granted defendant’s cross motion for summary judgment and awarded defendant $250 in costs.
Order modified by denying defendant’s cross motion for summary judgment and deleting the provision awarding defendant $250 in costs; as so modified, affirmed without costs.
In this action to recover first-party no-fault benefits for medical supplies provided to its assignor, plaintiff did not establish its prima facie entitlement to summary judgment since it failed to conclusively show that it submitted its claim form to defendant (see A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Counsel’s affirmation was of no probative value since it was based upon allegations of a person without personal knowledge that the claim form was actually mailed to defendant (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, the affidavit of plaintiff’s corporate officer failed to demonstrate submission of the claim form inasmuch as he did not state that he personally mailed the claim but merely stated that his file included the original proofs of mailing. Nor did his affidavit demonstrate that plaintiff followed a standard office practice or procedure designed to ensure that items were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, plaintiff’s motion for summary judgment was properly denied.
Similarly, defendant’s cross motion for summary judgment should be denied in view of [*2]the circumstances surrounding the ambiguous post office documentation, thereby creating an issue of fact as to whether the subject claim form was ever mailed to defendant. In view of the foregoing, the provision of the order awarding defendant $250 in costs should be deleted.
Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: February 6, 2006
Legal questions (2)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)
Held the provider failed its prima facie case because counsel lacked personal knowledge and the officer neither stated he mailed the claim nor described a standard office mailing practice.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response
Held the provider's officer affidavit, saying only that the file held proofs of mailing, showed neither actual mailing nor a standard office practice, so mailing of the claim form was not proved.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50387(U)) FollowedThe insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue.
- Melbourne Med., P.C. v Utica Mut. Ins. Co. (2004 NY Slip Op 24221)EUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification.
Similar decisions
- Vista Surgical Supplies Inc. v Allstate Ins. Co. (2006 NY Slip Op 52520(U))The provider failed to prove mailing of its claim, while the insurer established that it had never received the claim.
- Vista Surgical Supplies, Inc. v Statewide Ins. Co. (2006 NY Slip Op 51118(U))The provider failed to establish claim submission because its mailing receipts and the insurer's verification letters were not linked to the claims.
- Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 51556(U))The provider failed to establish claim submission because its mailing proof did not connect the claims to the certified mail receipt.
- Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50939(U))The provider failed to establish a prima facie case because its officer's affidavit lacked a sufficient business-records foundation.
- Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co. (2006 NY Slip Op 26276)The provider failed to prove claim submission because its affidavit lacked mailing proof and its purported stipulation was unsigned by the insurer.