June 30, 2006

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

Headnote

The relevant facts considered in this case were that Vista Surgical Supplies, Inc. was seeking to recover no-fault benefits from Liberty Mutual Insurance Co. after having its motion for summary judgment denied. The main issue decided was whether Vista Surgical Supplies, Inc. had submitted the claims for no-fault benefits and established that payment was overdue in order to be entitled to summary judgment. The court determined that in order to establish a prima facie entitlement to summary judgment, Vista Surgical Supplies, Inc. had to prove that it submitted the claims and that payment was overdue. The holding of the case was that Vista Surgical Supplies, Inc. failed to provide competent proof that the claim forms were mailed to Liberty Mutual Insurance Co., and therefore their motion for summary judgment was properly denied.

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.