SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (L. Baily-Schiffman, J), entered on April 9, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $1,685.31 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff instituted suit to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. In our opinion, plaintiff established its prima facie entitlement to summary judgment by showing that it submitted complete proofs of claims to defendant which defendant did not pay or deny within 30 days (11 NYCRR 65.15 [g]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term,
2d & 11th Jud Dists]). Thus, pursuant to Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274, 285 [1997]), the insurer is precluded from raising defenses such as lack of medical necessity (see Mingmen Acupuncture v Liberty Mutual, NYLJ, Apr. 10, 2002 [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff was entitled to summary judgment (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]).

The matter is accordingly remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (see Insurance Law § 5106 [a];
11 NYCRR 65.15 [h]; 65.17 [b] [6]; St.Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]). [*2]
Decision Date: March 26, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (M. Solomon, J.), dated October 10, 2002, as denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted for the principal sum of $1,018.47 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

Plaintiff sued to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. Plaintiff’s moving papers established a prima facie case for summary

SM-1

In opposition to plaintiff’s motion, defendant submitted only a portion of an unsworn letter from its medical expert which as submitted did not set forth a factual basis and medical rationale for the rejection of coverage on the ground that it was not medically necessary. Accordingly, plaintiff’s motion should be granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 (b) (6); see also St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).

SM-2

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the District Court, Nassau County (J. Asarch, J.), entered January 2, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

Plaintiffs commenced this action to recover first-party no-fault benefits for medical services rendered to their assignor, as well as statutory interest and attorney’s
fees, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved for
summary judgment and defendant cross-moved for consolidation and summary
judgment dismissing the complaint. By order entered January 2, 2003, the court below denied both motions.

In support of its motion, plaintiffs submitted an affidavit in which Bella Safir states that she is the “practice and billing manager” and “an officer of plaintiff,” even though there are three distinct plaintiffs in this matter. We note that A.B. Medical Services, PLLC and Royalton Chiropractic P.C. have different business addresses, and no address is provided for Franklin St. Marks Medical P.C., for which there is also no assignment. The affidavit does not indicate for which “plaintiff” Safir is the billing manager and this court cannot assume that she is acting on behalf of one particular plaintiff, or on behalf of all of the plaintiffs. Consequently, her affidavit in which she states that “plaintiff” provided defendant with complete claim forms is insufficient to establish said fact inasmuch as the affidavit does not lay the necessary foundation for the admissibility of the claim forms as to any of the named plaintiffs (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., Misc 3d [App Term, 9th & 10th Jud Dists, decided Mar. 12, 2004]). Accordingly, plaintiffs have failed to make a prima facie showing of entitlement to judgment as a matter of law (cf. Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Amaze Med. Supply Inc. [*2]v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Assuming, arguendo, that Safir’s affidavit was sufficient and plaintiffs established their prima facie entitlement to summary judgment, we would nonetheless affirm the order of the court below inasmuch as defendant raised a triable issue of fact as to fraud (see A. B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., Nos. 2003-469, 470, 471 N C [decided herewith]).
Decision Date: March 17, 2004

Supreme Court, Appellate Term, Second Department, March 17, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. DeSena & Sweeney, LLP, Hauppauge (Lisa M. Dawson of counsel), for respondent.

{**4 Misc 3d at 84} OPINION OF THE COURT

Memorandum.

On the court’s own motion, appeals consolidated for purposes of disposition.

Order unanimously affirmed without costs.

In these actions to recover $7,393.37 in assigned first-party no-fault benefits provided its assignors, with the exception of the claim for $290.64 in the action appealed under calendar No. 2003-469 N C, the entire claim asserted in the action appealed under calendar No. 2003-470 N C, and the claim for $358.04 in the action appealed under calendar No. 2003-471 N C, plaintiff established its entitlement to the benefits prima facie, by proof that it submitted the completed statutory forms setting forth “the fact and amount of loss sustained” (Insurance Law § 5106 [a]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]; see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant’s failure timely to deny any of the claims for which a prima facie case is established (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [d] [1]) precluded most defenses thereto (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]).

However, the preclusion rule does not apply to a defense based on a claim of fraud (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752 [2002]). Defendant’s proof in each case included, inter alia, examinations of the assignors under oath and an investigator’s affidavit which revealed significant discrepancies in the assignors’ accounts of their activities before and after the accident and irregularities with respect to the insured’s various identities and addresses. Moreover, based on the assignors’ statements upon their examination, there are additional questions of fact as to whether certain of the medical services were fraudulently rendered in that they were not medically responsive to the injuries reported by the assignors or continued long after the reported symptoms abated. Under the circumstances herein, such allegations raise triable issues as to whether the automobile accident was a deliberate event staged in furtherance of a scheme to defraud, or whether medical services were fraudulently provided, a defense which survives preclusion, unlike the bare claim of lack of medical necessity here precluded by defendant’s failure timely to deny the claim (cf. Penny v Pembrook Mgt., 280 AD2d 590, 591 [2001]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]).

We note that even absent the claim of fraud, the court properly denied summary judgment as to the aforementioned claims for $290.64 and $358.04. The alleged provider claimant was Royalton Chiropractic, P.C., on whose behalf the assignor had executed assignment of benefits forms. However, Royalton is not named as a party plaintiff in either of these two actions, and in the supporting affidavit submitted in each action the deponent, on whose authority [*2]the claim forms are sought to be proved, states only that she is an officer of “plaintiff,” presumably A.B. Medical Services PLLC, the only captioned plaintiff. {**4 Misc 3d at 85}

Likewise, the court also properly denied summary judgment as to all claims asserted in calendar No. 2003-470 N C. In an affidavit in support of the motion, Bella Safir alleges merely that she is the “practice and billing manager” and an “officer” of “plaintiff.” Ms. Safir does not state for which named plaintiff she is a manager and an officer. Consequently, the affidavit in which Safir states that “plaintiff” provided defendant with complete claim forms is insufficient to establish said fact inasmuch as the affidavit does not lay the necessary foundation for the admissibility of said forms as to any of the named plaintiffs (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 138[A], 2004 NY Slip Op 50903[U] [App Term, 9th & 10th Jud Dists 2004]).

Accordingly, in view of the foregoing, plaintiff’s motion for summary judgment was properly denied (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 138[A], 2004 NY Slip Op 50902[U] [2004] [decided herewith]).

McCabe, P.J., Lifson and Skelos, JJ., concur.{**4 Misc 3d at 86}

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the District Court,

Nassau County (S. Kluewer, J.), entered December 2, 2002, as denied their motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiffs commenced this action to recover first-party no-fault benefits
for medical services rendered to their assignor, as well as statutory interest and attorney’s fees, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved
for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Both motions were denied by order entered December 2, 2003.

In support of its motion, plaintiffs submitted an affidavit in which Bella
Safir states that she is the “practice and billing manager” and “an officer of plaintiff,” even though there are four distinct plaintiffs in this matter. Although A.B. Medical Services, PLLC and D.A.V. Chiropractic, P.C. have the same business address, Daniel Kim’s Acupuncture, P.C. has a different address and no address is provided for G.A. Physical Therapy, P.C. The affidavit does not indicate for which plaintiff she is the billing manager, and this court cannot assume that she is acting on behalf of one particular plaintiff, or on behalf of all of the plaintiffs. Consequently, this affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Amaze Med. Supply Inc. v Eagle Ins. Co.,
NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), and we find that the court below correctly determined that plaintiffs failed to make out their prima facie entitlement to summary judgment.
Decision Date: March 12, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County

(P. Sweeney, J.), entered December 16, 2002, denying its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted for the principal sum of $2,670.40 and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In or about September 2001, plaintiff commenced this action to recover $2,670.40 in first-party no-fault benefits for health services it provided to its assignor
pursuant to Insurance Law § 5101 et seq., as well as statutory interest and attorney’s fees. Thereafter, plaintiff moved for summary judgment on the ground that, inter alia, defendant’s denial of its claim was not made within the statutory 30-day period as required by Insurance Law § 5106. By order entered December 16, 2002, the court below denied the motion.

A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment by showing that it submitted a complete proof of claim to defendant which defendant did not pay or deny within the statutory 30-day period (see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s request to examine the assignor under oath did not toll the statutory period inasmuch as, at the applicable time, there was no provision in the no-fault regulations for such verification (A.B. Med. Serv. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; see Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]; cf. 11 NYCRR
65-3.5 [e]). Moreover, the October 19, 2001 and November 19, 2001 letters defendant allegedly sent to plaintiff did not constitute a proper request for verification, and follow-up letter, and did not toll the statutory period, since the letters failed to indicate to whom the requests were made or what was specifically requested . The [*2]
letters merely state that an investigation was being conducted (see e.g. Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999 [App Term, 9th & 10th Jud Dists] [a letter stating that a peer review was to be conducted did not amount to a request for verification]; see also 11 NYCRR 65.15 [e] [2]). Having failed to timely pay or deny, defendant is precluded from raising defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).
Accordingly, plaintiff’s motion for summary judgment for the principal sum of $2,670.40 is granted and the matter remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Decision Date: March 04, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Queens County (A. Agate, J.), entered August 23, 2002, denying its motion for summary judgment.

Order unanimously modified by granting partial summary judgment to plaintiff in the sum of $7,643.18, and matter remanded to the court below for the calculation of statutory interest, an assessment of attorney’s fees and for all further proceedings on the remainder of the claims; as so modified, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits, plus statutory interest and attorney’s fees, for medical services rendered to its assignor,
pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiff moved for summary
judgment, which motion was denied by order of the court below entered August 23, 2002.

A review of the record indicates that plaintiff established its prima facie entitlement to partial summary judgment in the amount of $7,643.18 by showing that it submitted complete proofs of claims to defendant in 2001, which were not timely paid or denied (see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant contends that said claims were timely denied inasmuch as the statutory period was tolled since it requested verification in the form of an examination under oath of the assignor. However, the letters attached to defendant’s opposition papers do not toll the statutory period since they do not request verification; rather they inform plaintiff that its bills were being delayed because it was requesting examinations of several parties involved in the loss (see e.g. Sehgal v Royal Ins. Co. of Amer., NYLJ, Apr. 15, 1999 [App Term, 9th & 10th Jud Dists] [a letter stating that a peer review was to be conducted did not amount to a request for verification]). Moreover, it is noted that a request for such an examination would not toll the statutory period inasmuch as there was no provision in the no-fault regulations for same prior to April 5, 2002 (see
A.B. Med. Serv. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; A.B. Med. Serv. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded as to said claims (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists], supra) and has not shown a triable issue of fact (see Alvarez, 68 NY2d at 324).

Plaintiff concedes that defendant timely denied its $820 acupuncture claim, $1,010.74 of its $1,212.16 physical therapy claim, and its $438.10 chiropractor claim, and argues that defendant improperly denied said claims on the ground of concurrent treatment. A review of the record, however, indicates that plaintiff failed to establish its prima facie entitlement to summary judgment for its $438.10 claim since it did not provide a proof of claim therefor (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists], supra), and we find that defendant validly denied the $820 and $1,010.74 claims on the grounds of “overlapping/excessive and/or concurrent care” and/or “services rendered by more than one physician.”

Accordingly, plaintiff is granted partial summary judgment in the principal sum of $7,643.18, and the matter is remanded to the court below for the calculation of statutory
interest and an assessment of attorney’s fees as to the claims on which defendant is
precluded, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: March 04, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County

(J. Sullivan, J.), dated November 27, 2002, as denied its motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $795 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff sued to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. In our opinion, plaintiff’s motion for summary judgment should have been granted.
The Insurance Regulation in effect in 2001, when the medical supplies were provided, was section 65.15 (d) (3) which stated that the eligible injured person shall submit to medical examinations when, and as often as, the company may reasonably require. There was no provision requiring the eligible person to appear for an examination under oath (EUO) until the following year, when the new regulation became effective on April 5, 2002 (11 NYCRR 65-3.5 [e]; A.B. Med. Serv. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]), and, thus, defendant’s EUO demands did not toll the 30-day period in which an insurer must act upon a claim or be precluded from most defenses (Insurance Law § 5106 [a]; Central Gen Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; A.B. Med. Serv. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]). Since there was no requirement that plaintiff’s assignor appear for an examination under oath as requested by defendant, plaintiff is entitled to summary judgment.

The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (see Insurance Law § 5106 [a]; 11 NYCRR 65.17 [b] [6]; 65.15 [*2][h] [1]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: March 04, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (B. Bayne, J.), entered February 27, 2003, as denied its cross motion for summary judgment.

Order unanimously modified by providing that plaintiffs cross motion for summary judgment is granted and the matter remanded to the court below for calculation of statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical equipment provided to plaintiff’s assignors, defendant moved for summary judgment and plaintiff cross-moved for summary judgment. The court denied both motions, holding, inter alia, that the supporting affidavit submitted in support of plaintiff’s cross motion was defective because it contained legal arguments notwithstanding that the affiant was not an attorney. This appeal by plaintiff ensued.

Although it is well settled that “[a]ffidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law” (Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [1]; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 75, CPLR C2214:21), the mere inclusion of two case citations within a footnote did not render the entire affidavit defective. Rather, inasmuch as the affidavit contained facts of which the affiant had personal knowledge, it was necessary to assess the merits of plaintiff’s cross motion.

Plaintiff’s cross motion sufficed to establish a prima facie cause of action (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), and shifted to defendant the burden to demonstrate the existence of a material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The affirmation by defendant’s counsel failed to allege that she had personal knowledge either that defendant timely mailed its requests for independent medical examinations to plaintiffs assignors or of facts sufficient to establish the [*2]presumption of mailing, i.e., an account of defendant’ s standard office procedures to ensure that requests for independent medical examinations are mailed (cf. S & M Supply, Inc. v Geico Ins. Co., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists]). In the absence of a sufficient showing that the 30-day statutory period had been tolled, under the circumstances presented, the defendant is precluded from interposing its defenses (Insurance Law § 5106 [a]; Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195, 199 [1997]; Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Thus, plaintiffs cross motion for summary judgment in the principal sum of $2,425 should have been granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.
Decision Date: March 03, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (K. Rothenberg, J.), entered November 4, 2002, denying its motion for summary judgment.

Order unanimously reversed without costs, plaintiffs motion for summary judgment granted in the principal sum of $517 and matter remanded to the court below for calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff commenced this action to recover $517 in first-party no-fault benefits for health services it provided to its assignor. Thereafter, it moved for summary judgment on the ground that defendant did not pay or deny its claim within 30 days as required by Insurance Law § 5106 (a). Upon a review of the record, we find that plaintiff established its prima facie entitlement to summary judgment, by showing that it submitted a completed claim to defendant (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), which defendant acknowledged receiving on February 2, 2001 and denied by letter of March 21, 2001.

The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant, however, did not meet this burden since it failed to establish by competent evidence that it timely sent a verification request thereby tolling the commencement of the 30-day period in which to deny or pay the claim (see e.g. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]). Plaintiff did not admit to receiving said requests. Contrary to the determination of the court below, we find that the claim examiner’s affidavit raises no triable issue of fact as to whether a request was timely sent to plaintiff since she did not state that she had personal knowledge that a request was mailed to plaintiff (see Rue v Stokes, 191 AD2d 245 [1993]), and she did not create a presumption of [*2]mailing by describing the standard operating procedures defendant used to ensure that its requests are properly mailed (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Accordingly, plaintiffs motion for summary judgment is granted and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereto.
Decision Date: February 26, 2004