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 (Diccia T. Pineda-Kirwan, J.), entered April 20, 2004. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services provided to its assignor. Plaintiff established its prima facie entitlement to summary judgment by showing that it submitted the statutory claim form, 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]).

The defendant was required to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]) unless such period was tolled through verification requests. The defendant timely sent plaintiff a verification request in which it requested the name and license of the person rendering the treatment (11 NYCRR 65-3.6 [b]). The plaintiff’s attorney sent defendant a letter which stated that the requested information was attached. Defendant alleges that it did not receive the requested verification and that it therefore mailed plaintiff’s attorney a follow-up verification request seeking such information, which information plaintiff has yet to provide. The defendant failed to establish that the 30-day period was tolled by the second verification request it allegedly mailed to plaintiff’s attorney since it failed to submit, in admissible form, any proof of mailing of said request or an affidavit from one with personal knowledge that the request was sent to plaintiff’s attorney (see e.g. Presbyterian Hosp. v Maryland Cas. Co., 226 AD2d 613 [1996]). The affidavit of defendant’s litigation specialist was [*2]insufficient to establish proper mailing since there is no allegation by her that she personally mailed the claim, and the affidavit did not contain a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Hertz Corp., 9 AD3d 392 [2004]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]). In view of the foregoing, defendant failed to pay or deny the claim within the 30-day claim determination period and plaintiff’s motion for summary judgment was properly granted.

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: May 19, 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 13, 2005. The order denied plaintiffs’ motion for summary judgment.

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

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted claims, 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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 show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

A review of the record indicates that, in opposition to plaintiffs’ motion for summary judgment, defendant solely relied upon a fraud defense alleging that the claims were based on a non-covered event. We note that defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). However, the documentation submitted by defendant in opposition to plaintiff’s motion, consisting of the affirmation of defendant’s attorney and examinations under oath testimony of several persons involved in the accident, does not show [*2]that the accident was a non-covered event. The inconsistencies between the testimonies do not 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., 90 NY2d at 199). Consequently, defendant failed to demonstrate the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order of the court below is reversed, plaintiffs’ motion for summary judgment is granted and matter remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the order denying plaintiff’s motion for summary judgment in the following memorandum:

Contrary to the holding of the majority, I find that defendant presented sufficient facts and circumstances to establish that its 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]).

The supporting papers established certain inconsistencies in the testimonies of the occupants of the subject car. Said papers also disclosed the facts that each of the occupants had several prior claims and that one of the prior claims involved the same two individuals being injured together in another automobile accident.

The confluence of circumstances certainly constitute a “founded belief” that the “accident” may not be a valid covered event.

As correctly stated by the majority, the defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199).

Further, the D.A.V. Chiropractic claim for $303.30 was properly and timely denied due to lack of medical necessity based upon a “negative” IME report. The majority acknowledges the propriety and timeliness of the denial but believes summary judgment is warranted in favor of the plaintiff because the report annexed to the motion papers was an unsworn copy of the report.

For the reasons set forth, in detail, in my dissent in Ocean Diagnostic Imaging v Lancer Ins. Co. (6 Misc 3d 62 [2004]), an unsworn medical report when submitted in opposition to a motion for summary judgment is sufficient to raise a triable issue of fact.
Decision Date: May 19, 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 (Donald S. Kurtz, J.), entered May 24, 2005. The order, insofar as appealed from, granted defendant’s motion for severance and denied plaintiff’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 as the assignee of 11 alleged eligible injured persons. The claims arose out of 11 separate accidents. Defendant failed to timely answer, and a default judgment was subsequently entered. Defendant moved to vacate the default judgment and sever the causes of action. Plaintiff subsequently cross-moved for summary judgment. Thereafter, by order dated May 24, 2005, the court granted that part of defendant’s motion seeking severance of the causes of action, denied, as moot, that part seeking vacatur of the default judgment “in that plaintiff has consented to vacate the default judgment,” and denied plaintiff’s cross motion for summary judgment “as it was filed in violation of a stay imposed by order to show cause dated August 24, 2004.” The instant appeal by plaintiff ensued.

A review of the record indicates that defendant’s answer clearly places at issue, inter alia, whether there was fraud as to the accidents and the necessity and reasonableness of the medical services rendered. We find that these defenses are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical. Accordingly, the court below providently exercised its discretion in granting defendant’s motion to sever plaintiff’s causes of action (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]; Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; S.I.A. Med. Supply [*2]Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U] [App Term, 2d & 11th Jud Dists]; Metro Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 136[A], 2005 NY Slip Op 50238[U] [App Term, 2d & 11th Jud Dists]). In view of the foregoing, plaintiff’s cross motion for summary judgment was properly denied.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: May 17, 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 March 18, 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 established a 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]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to the motion, defendant provided evidence demonstrating the timely mailing of its denial of claim, based upon plaintiff’s assignor’s failure to appear for a pre-claim independent medical examination (IME) (see 11 NYCRR 65-3.8 [c]), as well as its letters to plaintiff’s assignor requesting the IME. Moreover, the record establishes that plaintiff’s assignor failed to appear for the scheduled IME. In view of the foregoing, in our opinion, plaintiff’s motion for summary judgment was properly denied (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]; see also D.A.V. Chiropractic P.C. v American Tr. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50609[U] [App [*2]Term, 2d & 11th Jud Dists]).

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
AMAZE MEDICAL SUPPLY INC.
a/a/o MARTA YEPES,
Appellant,

-against-

ALLSTATE INSURANCE COMPANY,
Respondent.

Golia, J.P., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: May 17, 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 October 20, 2004. The order, insofar as appealed from, granted plaintiff’s motion to the extent of awarding plaintiff partial summary judgment in the sum of $1,997.

Order, insofar as appealed from, affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies provided to plaintiff’s assignor, plaintiff’s motion for summary judgment was granted as to its claims for $874 and $1,123, and denied as to two other claims. The instant appeal by defendant ensued.

The plaintiff established its prima facie entitlement to summary judgment on both claims since it provided proof that it submitted these 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]). The presumption that an addressee received an item by mail may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff’s corporate officer alleged that it is plaintiff’s usual procedure to send billing by certified mail and he attached to the moving papers signed post office ledgers listing defendant as addressee, date stamped April 23, 2003 for the $874 claim and June 4, 2003 for the $1,123 claim. Thus, plaintiff made a prima facie showing of its entitlement to summary judgment thereby shifting the burden to defendant to come forward with a triable issue of fact (see Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists]). [*2]

Defendant’s denial of claim form, in regard to the claim in the amount of $1,123, indicates that defendant’s denial was not timely made during the 30-day statutory period within which it was required to pay or deny said claim (11 NYCRR 65-3.8 [c]). The record contains no NF-10 denial of claim form for the $874 claim. Moreover, defendant’s requests for examinations under oath (EUOs) did not toll the 30-day claim determination period since its papers in opposition to plaintiff’s motion for summary judgment failed to demonstrate that the policy in effect contained an endorsement authorizing EUOs, pursuant to 11 NYCRR 65-1.1 (d), which regulation became effective on April 5, 2002. In view of the foregoing, defendant failed to show that its time to deny the claims was tolled (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, defendant is precluded from raising most defenses with respect thereto (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Consequently, plaintiff is entitled to summary judgment on the $1,123 claim as well as the claim in the amount of $874.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: May 17, 2006

[*1]

Supreme Court, Appellate Term, Second Department, May 17, 2006

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Jaffe & Nohavicka, New York City, and Thomas Torto and Kathleen C. Waterman, New York City, for respondent.

{**12 Misc 3d at 53} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiffs’ motion for summary judgment granted as to plaintiff SZ Medical P.C.’s claims for $182.37 and $532.42, plaintiff JH Chiropractic P.C.’s claims for $168.50 and $256.94, and New Wave Oriental Acupuncture P.C.’s claim for $660.56 and its two claims for $700, 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 treatment provided to their assignor, plaintiffs SZ Medical P.C., JH Chiropractic P.C., and New Wave Oriental Acupuncture P.C. established their prima facie entitlement to summary judgment by proof that they submitted claims, 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]). The burden then shifted to defendant to establish triable issues of material fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

We note at the outset that in its claim denial form, defendant considered SZ Medical P.C.’s claim for $473.20 as a claim for $532.42, the correct total of the charges for the various treatments set forth in the claim form, and we so modify the amount sought (A.B. Med. Servs. PLLC v Allstate Ins. Co., 8 Misc 3d 137[A], 2005 NY Slip Op 51270[U] [App Term, 2d &{**12 Misc 3d at 54} 11th Jud Dists 2005]). As [*2]to JH Chiropractic P.C.’s claim for $256.94, defendant proved no denial, nor did it assert any ground to excuse its failure to pay or deny the claim within the statutory time (Insurance Law § 5106 [a]), and JH Chiropractic P.C. is therefore entitled to summary judgment thereon. Although defendant proved timely denials of plaintiffs’ remaining claims, insofar as they were based on the defense of lack of medical necessity of the services rendered, they were factually insufficient, conclusory and vague, and thus without merit as a matter of law (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]). Defendant denied SZ Medical P.C.’s claim for $532.42 following a “medical review” which determined that the provider had failed to prove the treatment’s medical necessity. The denial form also stated that, on the basis of an independent medical examination (IME), the eligible injured person required no further treatment. Defendant denied JH Chiropractic P.C.’s claim for $168.50 and both of New Wave Oriental Acupuncture P.C.’s claims for $700 as lacking medical necessity, also on the basis of a “medical review” (or “medical audit”). No IME report was attached to the claim denial forms nor did said forms include sufficient factual assertions derived from the report or a medical rationale based thereon to establish the defense of lack of medical necessity in the absence of the report (e.g. Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., 7 Misc 3d 135[A], 2005 NY Slip Op 50743[U] [App Term, 2d & 11th Jud Dists 2005]).

Although plaintiffs, in their moving papers, attached a copy of an unsworn nurse’s peer review report to copies of certain of defendant’s claim denial forms, said report did not assert sufficient facts and a medical rationale based thereon to establish a lack of medical necessity (Chi-Ti Acupuncture, P.C. v Hartford Acc. & Indem. Co., 10 Misc 3d 146[A], 2006 NY Slip Op 50148[U] [App Term, 2d & 11th Jud Dists 2006]). We note, in any event, that a nurse’s unsworn peer review report is inadmissible and therefore of no probative value (Dombrowski v Moore, 299 AD2d 949, 951 [2002]), and defendant offered no excuse for its failure to submit the report in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]). Moreover, a nurse is a mere lay informant for purposes of medical diagnosis and treatment, and is not competent to render medical opinions (Dombrowski v Moore, 299 AD2d at 951){**12 Misc 3d at 55} absent an accounting of his or her training, observations or experience sufficient to establish such competence (Medwide Med. Supply Inc. v Country-Wide Ins. Co., 8 Misc 3d 131[A], 2005 NY Slip Op 51078[U] [App Term, 2d & 11th Jud Dists 2005]; Jamil M. Abraham M.D. P.C. v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists 2004]; see People v Morehouse, 5 AD3d 925, 928 [2004]; People v Munroe, 307 AD2d 588, 591 [2003]).

Defendant’s denial of JH Chiropractic P.C.’s claim for $168.50 as untimely is without merit. Defendant acknowledged receipt of the claim on the 45th day from the date the first treatment listed therein was rendered thereby necessarily conceding that it was timely submitted, i.e., mailed (see 11 NYCRR 65-1.1 [claims must be submitted within “45 days after the date (the) services (were) rendered”]; NY State Ins Dept Informal Op No. 03-06-30 [June 30, 2003] [“the 45 day period for mailing of a written proof of claim . . . begins the day after the services are rendered”]). With respect to SZ Medical P.C.’s claim for $182.37, and New Wave Oriental Acupuncture P.C.’s claim for $660.56, plaintiffs do not dispute that they failed to submit their claims in the requisite time. However, 11 NYCRR 65-1.1 provides that: “The . . . time limitations for the submission of proof of claim shall apply unless the eligible injured person [or that person’s representative] submits written proof providing [*3]clear and reasonable justification for the failure to comply with such time limitation.” Further, 11 NYCRR 65-3.3 (e) provides:

“When an insurer denies a claim based upon the failure to provide timely written notice of claim or timely submission of proof of claim by the applicant, such denial must advise the applicant that late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice.” (Emphasis added.)

Defendant points to no portion of its claim denial forms which contain the required advisement, nor does it allege that it communicated said advice in any other manner. Accordingly, defendant waived reliance on the 45-day rule as a basis to deny the claims and plaintiffs should be awarded summary judgment on these claims as well.

Finally, defendant’s challenge to the absence of an authentication of assignor’s signatures on the assignment of benefits forms is also without merit. We have held that the failure to authenticate{**12 Misc 3d at 56} an assignor’s signature cannot be considered an assignment defect “in the absence of any statutory or regulatory requirement for the same” (Amaze Med. Supply Inc. v Lumbermens Mut. Cas. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50084[U], *2 [App Term, 2d & 11th Jud Dists 2005]). Even if such absence rendered the assignment defective, defendant’s failure to seek verification of the assignment, within 10 days of the claims’ receipt and to allege such deficiency in its claim denial forms, constituted a waiver of any defense with respect thereto (e.g. A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists 2005]).

In view of the foregoing, plaintiffs’ motion for summary judgment is granted 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.

Golia, J.P. (concurring with the result only): I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

Rios and Belen, JJ., concur; Golia, J.P., concurs in a separate memorandum.

—[*1]

In a subrogation action to recover insurance benefits paid to the plaintiff’s insured, the plaintiff appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated February 17, 2005, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

We agree with the plaintiff’s contention that the no-fault provisions of the Insurance Law (see Insurance Law § 5102 [a], [b]; § 5103 [a]) do not bar it from seeking recovery of benefits it paid to its insured for “extended economic loss” pursuant to an “additional personal injury protection” endorsement (Allstate Ins. Co. v Stein, 1 NY3d 416, 417 [2004]; see Allstate Ins. Co. v Mazzola, 175 F3d 255 [2d Cir 1999]). However, the defendants established their entitlement to judgment as a matter of law by submitting evidence that the plaintiff’s subrogor unsuccessfully sought to recover damages for his extended economic loss from them in a prior action, which culminated in a jury verdict in their favor. An insurance company which has paid additional personal injury protection benefits for extended economic loss has a traditional equitable right of subrogation, and thus acquires only the rights that its subrogor had, with no enlargement or diminution (see Allstate Ins. Co. v Stein, supra). Since the plaintiff’s subrogor unsuccessfully sought to recover damages for extended [*2]economic loss in a prior action, the jury verdict in that action is entitled to preclusive effect on the issue of the plaintiff’s entitlement to recoup the benefits it paid to its subrogor for extended economic loss. Accordingly, the motion for summary judgment dismissing the complaint was properly granted. Schmidt, J.P., Krausman, Luciano and Covello, JJ., concur.

—[*1]

In an action to recover no-fault medical payments, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), dated February 7, 2005, as denied that branch of their motion which was for summary judgment on their second cause of action to recover payments for medical services rendered by the plaintiff New York and Presbyterian Hospital, as assignee of Cindy Garone. Justice Crane has been substituted for former Justice Cozier (see 22 NYCRR 670.1 [c]).

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

The plaintiffs, as the proponent of the summary judgment motion, had the initial burden of showing their prima facie entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). The plaintiffs failed to submit a proper affidavit of service to establish as a matter of law that the subject hospital bill was mailed and received by the defendant.

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998] [internal quotation marks omitted]). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). Here, no presumption of mailing was created because the affidavit of the plaintiffs’ billing service representative did not state that he actually mailed the particular claim alleged in the second cause of action to the defendant Allstate Insurance Company (hereinafter Allstate) or describe his office’s practice and procedure for mailing no-fault claims to insurers (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]).

Contrary to the plaintiffs’ contentions, the certified mail receipt and the United States Postal Service “Track and Confirm” printout do not prove that the particular claim alleged in the second cause of action was actually received where, as here, there is no evidence that this claim was mailed to Allstate under that certified mail receipt number and no signed certified mail return receipt card has been produced (cf. Matter of State Farm Mut. Auto. Ins. Co. [Kankam], 3 AD3d 418, 419 [2004]). The plaintiffs’ submissions were insufficient to raise a presumption that Allstate received the claim (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]).

Accordingly, it is unnecessary to consider the sufficiency of Allstate’s papers in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]). Schmidt, J.P., Crane, Rivera and Fisher, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Consolidated appeal from orders of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered on July 19, 2004 and December 23, 2004. The order entered July 19, 2004 denied defendant’s motion for renewal of plaintiffs’ motion to enter a default judgment and defendant’s cross motion for summary judgment seeking, in effect, to open the default and to compel plaintiffs to accept defendant’s answer. The order entered December 23, 2004, insofar as appealed from, upon [*2]

granting defendant’s motion for reargument, adhered to its prior determination in the order entered July 19, 2004.

Appeal from order entered July 19, 2004 dismissed as superseded.

Order entered December 23, 2004 modified by providing that, upon reargument, so much of defendant’s prior motion as sought renewal and, upon renewal, vacatur of the portion of the order entered February 6, 2004 which had granted plaintiffs’ underlying motion to enter a default judgment and denied defendants’ cross motion is granted, plaintiffs’ underlying motion to enter a default judgment denied, and defendant’s cross motion granted to the extent of permitting defendant to file and serve its answer within 30 days of the date of the order entered hereon; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits in the sum of $23,022.23, plaintiffs initially moved for an order directing entry of a default judgment upon defendant’s failure to appear and answer. In order to establish entitlement to a default judgment, plaintiffs were required to proffer proof that they submitted the claims to defendant, 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]). Plaintiffs failed to establish the submission of the claim forms to defendant. In his affidavit, plaintiffs’ “practice and billing manager” alleged that he “issued all of the billings,” that he “personally billed out the claim,” and that “[a]ll billing of plaintiff was sent to defendant.” The foregoing allegations in the affidavit are insufficient to demonstrate personal knowledge of the mailing of the claim forms, and do not contain an adequately detailed description of standard office mailing procedure so as to create a presumption of mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Accordingly, having failed to establish the facts constituting the claim (CPLR 3215 [f]), namely, the submission of the claims to defendant, upon reargument, the motion by defendant for renewal should have been granted and plaintiffs’ underlying motion for leave to enter a default judgment denied.

Moreover, the court erred in adhering to that portion of its earlier order which denied renewal of the underlying cross motion. While generally delay by an insurer will not be acceptable as a reasonable excuse for a default (see A.B. Med. Servs. PLLC v Travelers Prop. Cas. Co., 6 Misc 3d 53 [App Term, 2d & 11th Jud Dists 2004]), that rule is not absolute. “[W]hether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits . . . [There is] no basis to categorically exclude consideration of a delay by an insurance company in making such a determination” (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]). In the instant case, there was a sufficient showing to establish a reasonable excuse for the defendant’s default in answering, particularly in light of the initial delay by the office of the Superintendent of Insurance, upon which service was made, in forwarding process to defendant. Moreover, defendant’s submissions in support of its cross motion adequately demonstrated that it had a [*3]meritorious defense.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: April 28, 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 (Sarah L. Krauss, J.), entered December 7, 2004. The order denied plaintiffs’ motion for partial summary judgment seeking to recover the sum of $6,544.71.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to their assignors, plaintiffs health care providers failed to establish a prima facie entitlement to partial summary judgment by proof that they submitted the claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (cf. 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 affidavit of David Safir, wherein he states that he is “the medical billing manager of the plaintiff provider companies,” does not specify for which of the three plaintiffs he is the billing manager, and this court should not assume that he was acting on behalf of all three providers (see R.M. Med. P.C. v Lumbermans Mut. Cas. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50859[U] [App Term, 2d & 11th Jud Dists]). Indeed, Safir’s vague use of the word “companies” can also be construed to mean any two of the three provider companies. In these circumstances, the affidavit is insufficient to establish plaintiffs’ prima facie entitlement to partial [*2]summary judgment.

Accordingly, we affirm the order of the court below, which denied plaintiffs’ motion for partial summary judgment.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: April 27, 2006