December 28, 2006
Vista Surgical Supplies Inc. v Allstate Ins. Co. (2006 NY Slip Op 52520(U))
https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-allstate-ins-co-2006-ny-slip-op-52520u/
- Decided
- December 28, 2006
- Citation
- 2006 NY Slip Op 52520(U) · 14 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 3 later decisions (see Cited by)
- 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 52520(U))
| Vista Surgical Supplies Inc. v Allstate Ins. Co. |
| 2006 NY Slip Op 52520(U) [14 Misc 3d 129(A)] |
| Decided on December 28, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2006-188 K C.
against
Allstate Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered December 2, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.
Order affirmed without costs
Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment. The instant appeal by plaintiff ensued.
A provider establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is 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]). A plaintiff ordinarily establishes the submission of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Here, the affidavit of plaintiff’s corporate officer and the proof annexed thereto were insufficient to establish that plaintiff mailed the claim to defendant since “there is no evidence that th[e] claim was mailed to [defendant] under that certified mail receipt number” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, [*2]548 [2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claim was actually mailed to defendant and, as such, is unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud
Dists 2004]). Thus, plaintiff failed to establish its prima facie entitlement to summary judgment.
The affidavit of defendant’s claim representative and the printout annexed thereto established that defendant never received the subject claim from plaintiff. Since plaintiff failed to rebut defendant’s contention that it never received the claim by establishing the mailing of same, the lower court’s order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment should be affirmed.
Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 28, 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 to establish its prima facie case because its officer's affidavit and the annexed proof did not show the claim was mailed under the certified mail number, and counsel lacked personal knowledge.
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's affidavit and the certified mail receipt did not prove mailing because nothing tied the claim to that receipt number, and counsel's affirmation was hearsay; the insurer's proof of non-receipt stood unrebutted.
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.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- 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.
Cited by
A label shows how the later decision treated this one.
- Bright Med. Supply Co. v Tri State Consumer Ins. Co. (2013 NY Slip Op 51122(U)) FollowedThe insurer established nonreceipt of the provider's claim, and the provider failed to show proper mailing to the insurer's address.
- Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co. Div. of Onebeacon Am. Ins. Co. (2009 NY Slip Op 51395(U)) FollowedThe insurer established that it never received the provider's claims, and the provider failed to prove mailing.
- Jodi Jacobs, D.C., PLLC v Global Liberty Ins. Co. of NY (2021 NY Slip Op 50445(U)) FollowedThe insurer proved IME nonappearances and nonreceipt of one claim, but failed to establish its fee-schedule defense to a partially paid claim.
Similar decisions
- Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2006 NY Slip Op 51332(U))The provider's deficient mailing proof and ambiguous postal documentation left claim submission unresolved, defeating both summary judgment motions.
- 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 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.
- 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.