November 17, 2006

Forrest Chen Acupuncture Servs., P.C. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 52270(U))

Headnote

The court considered the fact that the plaintiff failed to prove the mailing of its claims, which is an essential element of its prima facie case to recover first-party no-fault benefits. The main issue decided in the case was whether the plaintiff had submitted a claim, setting forth the fact and amount of the loss sustained, which is required to recover benefits. The holding of the case was that the plaintiff's motion for summary judgment was denied due to its failure to prove mailing of its claims, and the defendant's cross motion for summary judgment was also denied because it failed to establish that it never received the plaintiff's claim or that the claim was submitted beyond the statutory deadline. Therefore, the order was modified by denying the defendant's cross motion for summary judgment and affirmed without costs.

Reported in New York Official Reports at Forrest Chen Acupuncture Servs., P.C. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 52270(U))

Forrest Chen Acupuncture Servs., P.C. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 52270(U)) [*1]

Forrest Chen Acupuncture Servs., P.C. v Nationwide Mut. Ins. Co.

2006 NY Slip Op 52270(U) [13 Misc 3d 142(A)]

Decided on November 17, 2006

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 17, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1810 K C.

Forrest Chen Acupuncture Services, P.C. as assignee of JOSE RIVERA, Appellant,
against
Nationwide Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 19, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the action.

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

Proof that plaintiff submitted a claim, setting forth the fact and the amount of the loss sustained, is an essential element of plaintiff’s prima facie case to recover first-party no-fault benefits (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the instant case, due to plaintiff’s failure to prove mailing of its claims, the burden of proof never shifted to defendant and the court properly denied
plaintiff’s motion for summary judgment (see Magnezit Med. Care P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50473[U] [App Term, 2d & 11th Jud Dists]; Magnezit Med. Care, P.C. v Allstate Ins. Co., 11 Misc 3d 129[A], 2006 NY Slip Op 50293[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp., 8 Misc 3d 130[A], 2005 NY Slip Op 51047[U] [App Term, 2d & 11th Jud Dists]).

As for defendant’s cross motion, it, too, should have been denied. Other than defense counsel’s conclusory affirmation stating that plaintiff “cannot show” timely mailing, defendant offers no admissible proof to establish that it never received plaintiff’s claim or that the claim was submitted beyond the statutory deadline. Accordingly, defendant failed to make a prima facie [*2]showing entitling it to judgment as a matter of law.

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