October 31, 2007

Westmed Physician, P.C. v State Farm Auto Ins. Co. (2007 NY Slip Op 52113(U))

Headnote

The relevant facts the court considered in this case were that Westmed Physician, P.C. sought to recover first party no-fault benefits totaling $1,350.20 for medical services rendered to its assignor on April 25, 2002 and May 16, 2002. However, the plaintiff's submissions were not sufficient to establish that it had mailed the $587.90 claim within the 180-day period prescribed by the governing insurance regulations. In support of its cross motion for summary judgment for the $587.90 claim, plaintiff submitted an affidavit of an employee stating that the bill was mailed on June 3, 2002, but this affidavit was deemed insufficient to establish the presumption of mailing. The main issue decided in the case was whether the plaintiff was entitled to recover the $587.90 claim for medical services rendered within the prescribed 180-day period, as required by the insurance regulations. The holding of the court was that plaintiff's motion for summary judgment should have been denied in its entirety, as its submissions were insufficient to establish that the claim was mailed within the 180-day period, and the affidavit provided was deemed insufficient to give rise to the presumption of mailing. Therefore, the appeal from the order of the Civil Court, which granted plaintiff's cross motion for summary judgment to the extent of awarding it the principal sum of $587.90, was modified to deny plaintiff's cross motion for summary judgment in its entirety.

Reported in New York Official Reports at Westmed Physician, P.C. v State Farm Auto Ins. Co. (2007 NY Slip Op 52113(U))

Westmed Physician, P.C. v State Farm Auto Ins. Co. (2007 NY Slip Op 52113(U)) [*1]

Westmed Physician, P.C. v State Farm Auto Ins. Co.

2007 NY Slip Op 52113(U) [17 Misc 3d 133(A)]

Decided on October 31, 2007

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 31, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKEON, J.P., McCOOE, SCHOENFELD, JJ
570651/06.

Westmed Physician, P.C., a/a/o Alex Delgado Plaintiff-Respondent, – –
against
State Farm Auto Ins. Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court, New York County (Anil C. Singh, J.), entered February 16, 2006, which, inter alia, granted plaintiff’s cross motion for summary judgment to the extent of awarding it the principal sum of $587.90.

Per Curiam.

Order (Anil C. Singh, J.), entered February 16, 2006, modified to deny plaintiff’s cross motion for summary judgment in its entirety, and as modified, affirmed, without costs.

Plaintiff seeks to recover first party no-fault benefits totaling $1,350.20 for medical services rendered to its assignor on April 25, 2002 and May 16, 2002. Although plaintiff moved for summary judgment on both claims, its motion was granted only to the extent of awarding plaintiff the sum of $587.90 on its claim for services rendered on April 25, 2002. Inasmuch as plaintiff’s submissions were insufficient to establish that it mailed the $587.90 claim within the 180-day period prescribed by the governing insurance regulations (see 11 NYCRR 65.12[e]), its motion for summary judgment should have been denied in its entirety.

In support of its cross motion for summary judgment for the $587.90 claim, plaintiff submitted the affidavit of an employee of the entity that oversees the mailing of its billings. The affidavit, dated December 30, 2005, stated that the employee mailed the bill for services rendered on April 26, 2002 on June 3, 2002. Although the affidavit indicated that the affiant personally mailed the bill to defendant, it did not explain the office mailing practice of her employer nor did it state the basis for the affiant’s recollection, three years later, of mailing the bill. Since the affidavit was insufficient to give rise to the presumption of mailing (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]), and defendant has alleged that it received plaintiff’s claim outside the prescribed 180-day period, plaintiff’s cross motion for summary judgment on the $587.90 claim should have been denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: October 31, 2007