October 2, 2006

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2006 NY Slip Op 51877(U))

Headnote

The main issue in this case was whether the appellant was entitled to recover first-party no-fault benefits from the respondent insurance company. The court considered the evidence submitted by the appellant in support of their motion for summary judgment, which included copies of the respondent's denial of claim forms acknowledging receipt of the claims, as well as an affidavit of an officer of the appellant provider. The main issue decided was whether the appellant had established its prima facie entitlement to summary judgment, which hinged on the submission of the statutory claim forms to the respondent. The court found that while the motion papers contained necessary evidence, there was a discrepancy with the affidavit of the appellant's officer, which was allegedly signed in blank and undated. As a result, the court held the matter in abeyance and remanded it to the lower court to report whether the affidavit included in the record on appeal was the same one considered by the motion court.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2006 NY Slip Op 51877(U))

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2006 NY Slip Op 51877(U)) [*1]

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co.

2006 NY Slip Op 51877(U) [13 Misc 3d 132(A)]

Decided on October 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 2, 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
2005-1692 Q C.

Delta Diagnostic Radiology, P.C. AAO SUNG KWON, Appellant,
against
Country-Wide Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered August 11, 2005. The order denied plaintiff’s motion for summary judgment with leave to renew upon the submission of proper papers.

Appeal held in abeyance and matter remanded to the court below to report whether the affidavit of plaintiff’s corporate officer included in plaintiff’s summary judgment motion papers as part of the record on appeal was the same affidavit as was submitted to the motion court. The Civil Court shall file its report with all convenient speed.

In an action to recover first-party no-fault benefits, a plaintiff 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 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 motion for summary judgment was supported by an affirmation of counsel and an affidavit of an officer of plaintiff provider, neither of which were sufficient to establish that the claim forms were submitted to defendant. However, plaintiff’s motion papers also contained copies of defendant’s denial of claim forms which acknowledge [*2]receipt of the claims on various specified dates. Such acknowledgment ordinarily cures any deficiencies in the motion papers with respect to the submission of the claim forms (see e.g. Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Nevertheless, the court below based its decision denying plaintiff’s motion for summary judgment, in part, upon the fact that the affidavit of plaintiff’s officer was both “signed in blank” and undated. The record on appeal, however, indicates that the affidavit submitted with the motion papers was signed and sworn to on a particular date.

Because of this discrepancy, we are unable to make a determination as to whether the affidavit submitted to the court below on the motion is the same affidavit as the one subject to review on this appeal. Accordingly, the matter is remanded to the court below to report whether the affidavit contained in the record on appeal was the same affidavit as was considered by the motion court.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: October 02, 2006