SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered March 25, 2005. The order denied plaintiff’s motion for summary judgment.

Order modified by granting plaintiff’s motion to the extent of granting partial summary judgment to plaintiff in the sum of $1,050 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claim; as so modified, affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a plaintiff provider generally establishes its 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 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]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended claim forms to defendant. However, said deficiency was cured by defendant’s acknowledgment of receipt of both of plaintiff’s claims in the affidavit of its claims adjuster (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiff established its prima facie entitlement to summary judgment and the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant established that it timely denied both claims. It asserted that the claim for $525 was denied based upon the peer review report of Dr. Corcoran. Said peer review report, which was annexed to the denial of claim form, set forth a factual basis and medical rationale for [*2]Dr. Corcoran’s opinion that the medical equipment was medically unnecessary and, as such, was sufficient to raise a triable issue of fact (see Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]).

In the court below, and on appeal, plaintiff asserted that defendant may not use an explanation of benefits form in lieu of the prescribed denial of claim form in denying the claim for $1,050. It is well settled that a claim can only be properly denied on the prescribed denial of claim form (see 11 NYCRR 65-3.8 [c] [1]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 16 [1999]). Since the record herein fails to establish that defendant submitted a copy of the required denial of claim form, defendant is precluded from raising any defense as to said claim (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, supra).

Accordingly, the order is modified by granting plaintiff partial summary judgment as to its $1,050 claim and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claim.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: June 2, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Edgar Walker, J.), entered March 15, 2005. The order conditionally granted defendant’s motion to strike the complaint, denied plaintiff’s cross motion for summary judgment and awarded defendant $50 in costs.

Appeal from so much of the order as conditionally granted defendant’s motion to strike the complaint and awarded it $50 in costs dismissed.

Order, insofar as it denied plaintiff’s cross motion for partial summary judgment, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for an order striking the complaint or, in the alternative, either precluding plaintiff from offering testimony at trial or compelling plaintiff to respond to its demand for a bill of particulars and demand for discovery and inspection. Plaintiff cross-moved for summary judgment, which motion defendant opposed. Thereafter, the court below denied plaintiff’s cross motion for summary judgment, granted defendant’s motion to strike, “without opposition,” unless plaintiff complies with defendant’s combined demands, within (60) days, and awarded defendant $50 in costs.

A review of the record indicates that plaintiff failed to establish its prima facie entitlement to summary judgment since the claim forms stated that the named treating providers were independent contractors, for whom plaintiff billing provider is not entitled to recover direct payment of assigned no-fault benefits (see e.g. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [App Term, 2d & 11th Jud Dists]). [*2]Plaintiff did not cure this defect by annexing copies of W-2 forms for said health care providers to its cross motion, since the W-2s do not conclusively establish that the health care providers were employed by plaintiff on the date the services were rendered. Consequently, plaintiff’s cross motion for partial summary judgment was properly denied.

Furthermore, since plaintiff did not submit any papers in opposition to defendant’s motion, said motion was granted on default and no appeal lies therefrom (see Super Laundry Equip. Corp. v Ditmar Bakr Laundromat, 232 AD2d 476 [1996]; Smith-Reyes v Moreland, 5 Misc 3d 132[A], 2004 NY Slip Op 51424[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the appeal from so much of the order as conditionally granted defendant’s motion and awarded defendant $50 costs is dismissed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 30, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County

(Eileen Nadelson, J.), entered January 11, 2005, and from a judgment entered thereon on January 18, 2006. The order granted plaintiff’s motion for summary judgment. The judgment awarded plaintiff the principal sum of $1,200.

Appeal from order dismissed.

Judgment reversed without costs, order entered January 11, 2005 vacated and plaintiff’s motion for summary judgment denied.

The appeal from the order must be dismissed because the right to appeal directly therefrom terminated with the entry of judgment (see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on appeal from said order are brought up for review upon the appeal from the judgment (see CPLR 5501 [a] [1]).

In an action to recover assigned first-party no-fault benefits, a plaintiff provider establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms setting forth the fact and 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]). While plaintiff’s moving papers were insufficient to establish submission of the claim forms (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), said deficiency was cured by defendant’s acknowledgment of receipt in its denial of claim forms (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]).

In opposition to plaintiff’s motion, defendant’s submissions, consisting of, inter alia, the [*2]report of its special investigator, were sufficient to raise an issue of fact as to whether plaintiff is a fraudulently incorporated medical corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). In Mallela, the Court of Appeals held that fraudulently incorporated medical corporations were not entitled to reimbursement of no-fault benefits. The Court noted that 11 NYCRR 65-3.16 (a) (12), which states that “[a] provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement,” specifically “excluded from the meaning of basic economic loss’ payments made to unlicensed or fraudulently licensed providers, thus rendering them ineligible for reimbursement” (Mallela, 4 NY3d at 320). The defense that a provider is fraudulently licensed and hence ineligible for reimbursement of no-fault benefits under 11 NYCRR 65-3.16 (a) (12), is a nonwaivable defense and is therefore not subject to the 30-day preclusion rule (cf. Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether plaintiff was a fraudulently licensed medical corporation, plaintiff’s motion for summary judgment should have been denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 30, 2006

—[*1]

In an action to recover no-fault insurance benefits under certain insurance contracts, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated July 21, 2005, as granted the defendant’s motion to vacate a judgment of the same court entered December 8, 2004, which is in favor of the plaintiffs and against it in the principal sum of $43,425.51, upon the defendant’s failure to appear or answer, and to extend its time to answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

Service upon the defendant was effectuated through delivery of the summons and complaint upon the Deputy Secretary of Insurance pursuant to Insurance Law § 1212. Although the defendant’s motion to vacate the default judgment was made pursuant to CPLR 5015 (a) (1), under the circumstances of this case, it may be treated as a motion made under CPLR 317 as well (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]). A defendant served with a summons other than by personal delivery or to an agent designated under CPLR 318 may obtain relief pursuant to CPLR 317 upon a showing that it did not receive notice of the summons in time to defend, and has a meritorious defense (see Marine v Federal Ins. Co., 293 AD2d 721 [2002]). Unlike [*2]a motion to vacate under CPLR 5015 (a) (1), it is unnecessary for a defendant seeking relief under CPLR 317 to demonstrate a reasonable excuse for its default (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., supra at 141; Marinoff v Natty Realty Corp., 17 AD3d 412, 413 [2005]; Rifelli v Fireside Homes Corp., 152 AD2d 629, 631 [1989]; Simon & Schuster v Howe Plastics & Chems. Co., 105 AD2d 604, 605 [1984]). The defendant met its burden of showing that it did not receive actual notice of the summons in time to defend (see Marine v Federal Ins. Co., supra; cf. Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]; Board of Mgrs. of Landings at Patchogue Condominium v 263 Riv. Ave. Corp., 243 AD2d 668 [1997]; Fleetwood Park Corp. v Jerrick Waterproofing Co., 203 AD2d 238, 239 [1994]; Anchor Sav. Bank v Alpha Developers, 143 AD2d 711, 713-714 [1988]) and that its defenses are meritorious (see 11 NYCRR 65-3.8; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; Presbyterian Hosp. in City of N.Y. v General Acc. Ins. Co. of Am., 229 AD2d 479 [1996]). Accordingly, the Supreme Court providently exercised its discretion in vacating the default judgment and extending the defendant’s time to answer. Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered June 10, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order modified by denying defendant’s cross motion for summary judgment; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the claim, setting forth the fact and the amount of the loss 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]). Defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]) and failed to show that its time to deny the claim was tolled (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]).

The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; GPM Chiropractic, P.C. v State Farm Mut. Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op [*2]50861[U] [App Term, 2d & 11th Jud Dists]). Thus, an issue of fact exists as to whether there was a lack of coverage. Consequently, plaintiff’s motion and defendant’s cross motion for summary judgment should have been denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 25, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen Gesmer, J.), entered September 27, 2004. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

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

In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see e.g. 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]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended claim form to defendant. However, said deficiency was cured by defendant’s acknowledgment of receipt both in its denial of claim form and in the affidavit of defendant’s employee (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiff established its prima facie entitlement to summary judgment.

Inasmuch as defendant failed to timely object to the lack of a valid assignment of benefits or to make a timely request for verification of the assignment, it waived any defenses based [*2]thereon (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]).

Contrary to defendant’s contention, the letters from defendant to plaintiff, notifying plaintiff that payment was delayed pending an investigation of the circumstances of the accident as well as the patient’s eligibility for no-fault benefits, did not toll the statutorily prescribed 30-day period (11 NYCRR 65-3.5, 65-3.8 [a] [1]) within which to pay or deny the claim (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, the denial was untimely and defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Defendant contends that it raised an issue of fact as to whether plaintiff’s claim was part of a fraudulent scheme involving plaintiff and wholesalers of durable medical equipment. While an insurer is not precluded from asserting a fraudulent scheme involving a staged accident, i.e., a lack of coverage defense premised on the fact or founded belief that the alleged injury did not arise out of an insured incident (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s claim of fraud herein is premised upon an allegation of excessive billing or lack of medical necessity, and such defense is subject to the 30-day preclusion rule (see id.; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29, supra). Accordingly, plaintiff was entitled to summary judgment and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 25, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 11, 2005. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. After plaintiff moved for summary judgment, defendant cross-moved, seeking summary judgment dismissing the action in its entirety or, in the alternative, partial summary judgment pursuant to CPLR 3212 (g). The Civil Court denied plaintiff’s motion and defendant’s cross motion, and this appeal by defendant ensued.

Defendant’s notice of appeal and appellate brief limit the issue before this court to whether the defendant was entitled to partial summary judgment upon the claims which it denied due to an alleged lack of medical necessity. Defendant argues that the affirmed peer review reports annexed to its cross motion and upon which said denials were based established defendant’s prima facie entitlement to judgment as a matter of law upon the issue of medical necessity and that plaintiff failed to present evidence in admissible form to demonstrate the existence of an issue of fact with regard to medical necessity.

Assuming arguendo that defendant’s cross motion was sufficient to establish that defendant mailed, within the 30-day claim determination period, the NF-10 denial of claim forms upon which defendant now seeks partial summary judgment, in any event, defendant’s appeal lacks merit. This court has repeatedly held that where a denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based upon lack of medical necessity, the defendant is precluded from asserting said defense (see A.B. Med. [*2]Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The denial of claim forms submitted herein were insufficient on their face for vagueness in that they merely indicated that the denials were based upon independent medical examinations (IMEs) with no indication that the reports of said IMEs were annexed thereto or sent to the plaintiff under separate cover within the 30-day claim determination period. In view of the foregoing, defendant is not entitled to partial summary judgment as a matter of law upon said claims because defendant may be precluded from asserting lack of medical necessity as a defense to such claims (see A.B. Med. Servs. PLLC, 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U], supra; Amaze Med. Supply, 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 24, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered January 6, 2005. The order denied plaintiff’s motion for summary judgment.

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

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the claim, setting forth the fact and the amount of the loss 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]). The burden then shifted to defendant to demonstrate a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The defendant submitted no opposition in the court below to overcome plaintiff’s prima facie case. Accordingly, the plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 24, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered March 4, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff moved for summary judgment. After defendant opposed the motion, the court denied plaintiff’s motion, finding an issue of fact with regard to medical necessity. Plaintiff appeals, claiming that defendant’s affirmed peer review report was inadmissible because it referred to unaffirmed reports prepared by doctors who treated plaintiff’s assignor.

In Kearse v New York City Tr. Auth. (16 AD3d 45, 51 [2005]), the Appellate Division, Second Department, held that affirmed medical reports prepared by the defendants’ doctors which referred to an unaffirmed magnetic imaging report prepared by plaintiff’s doctor were sufficient to establish defendants’ prima facie entitlement to summary judgment. Such affirmed reports are, therefore, likewise admissible in opposition to a motion for summary judgment to raise a triable issue of fact, as they did in the instant case. Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 24, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered August 3, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff provider 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]). In support of its motion for summary judgment, plaintiff submitted an affidavit of one of its corporate officers who did not aver that he had personal knowledge of the mailing of the claim forms but merely stated that “proofs of mailings for the billing and documents sent to the examiner are in my possession.” Although plaintiff did annex to the motion papers copies of two certified mail receipts from a Brooklyn post office postmarked July 3, 2002 and August 6, 2002, and two certified return receipt cards from a Hempstead post office postmarked July 8, 2002 and August 6, 2002, there is nothing in the record relating said receipts or cards to the instant claims. We note that plaintiff’s attorney’s affirmation, based on allegations by one who had no personal knowledge that the claims were actually mailed to defendant, is [*2]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]). Furthermore, the verification request letters annexed to defendant’s opposition papers do not establish defendant’s receipt of plaintiff’s claims since there is likewise nothing in the record relating said verification requests to the instant claims. Since the record is devoid of any competent evidence establishing either plaintiff’s mailing of the claims to defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]) or defendant’s receipt of same, plaintiff did [*3]
not make the requisite showing to establish a prima facie entitlement to summary judgment. Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 24, 2006