June 30, 2006

Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co. (2006 NY Slip Op 26276)

https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-liberty-mut-ins-co-2006-ny-slip-op-26276/

Court: Appellate Term, Second Department
Decided: June 30, 2006
Citation: 2006 NY Slip Op 26276 · 12 Misc 3d 114
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co., 12 Misc 3d 114 (App Term, 2d Dept 2006)

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.

The provider failed to prove claim submission because its affidavit lacked mailing proof and its purported stipulation was unsigned by the insurer. A corporate officer stated that proof of mailing was annexed, rather than specifically stating that the officer mailed the claims, but no such proof was attached. The insurer did not admit receipt. A later submission purporting to stipulate that insurer letters established receipt was unenforceable under CPLR 2104 because the insurer had not signed it. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion for failure to establish its prima facie entitlement under Insurance Law § 5106 (a).

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co. (2006 NY Slip Op 26276)

Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co.

2006 NY Slip Op 26276 [12 Misc 3d 114]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 06, 2006

[*1]

Vista Surgical Supplies, Inc., as Assignee of Aida Gonzalez, Appellant,
v
Liberty Mutual Insurance Co., Respondent.

Supreme Court, Appellate Term, Second Department, June 30, 2006

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Troy & Troy, Lake Ronkonkoma (Patrick J. Morganelli of counsel), for respondent.

{**12 Misc 3d at 86} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In order to establish a prima facie entitlement to summary judgment, plaintiff was required to prove that it submitted the subject claims, 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). In support of its motion for summary judgment, plaintiff annexed an affidavit of one of its corporate officers. In said affidavit, plaintiff’s corporate officer did not specifically state that he mailed the claims, but rather, stated that proof that he mailed the claims was annexed. However, since no such proof was annexed, plaintiff did not establish that he actually mailed the claims. In addition, there was no admission by defendant acknowledging the receipt of the claims. While plaintiff subsequently submitted a document entitled “Submission by Stipulation of the Parties and Court,” which stated that the parties agreed that the letters annexed thereto from defendant established defendant’s receipt of the claims, said document is not enforceable as it was not signed by the defendant (see CPLR 2104). Since plaintiff failed to establish by competent proof that the claim forms were mailed to defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), plaintiff’s motion for summary judgment was properly denied. [*2]

Pesce, P.J., Rios and Belen, JJ., concur.

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.

Claimant's prima facie case on motions

Open the full map

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 its officer referred to proof of mailing that was not annexed, the insurer admitted no receipt, and the unsigned stipulation was unenforceable.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

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.

Proof of mailing

Open the full map

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 mailing not proved because the officer did not state he mailed the claims and the proof of mailing he cited was not annexed; an unsigned stipulation could not establish receipt.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

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

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.

Similar decisions

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 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 American Tr. Ins. Co. (2006 NY Slip Op 52470(U))The provider failed to prove claim submission in its moving papers and could not supply that essential element through inadmissible reply material.
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 General Assur. Co. (2006 NY Slip Op 51034(U))The provider's action was premature because timely verification requests remained unanswered when the action began.