February 6, 2006

Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2006 NY Slip Op 51332(U))

Headnote

The relevant facts in this case were that Vista Surgical Supplies, Inc. was seeking to recover first-party no-fault benefits for medical supplies provided to its assignor. The main issue was whether Vista Surgical Supplies, Inc. had submitted its claim form to Allstate Insurance Co. The court held that Vista Surgical Supplies, Inc. did not establish its prima facie entitlement to summary judgment because it failed to conclusively show that it submitted its claim form to Allstate Insurance Co. The court also held that the provision of the order awarding defendant $250 in costs should be deleted. The decision was that Vista Surgical Supplies, Inc.'s motion for summary judgment was properly denied, and Allstate Insurance Co.'s cross motion for summary judgment should be denied, thus affirming the order without costs.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2006 NY Slip Op 51332(U))

Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2006 NY Slip Op 51332(U)) [*1]

Vista Surgical Supplies, Inc. v Allstate Ins. Co.

2006 NY Slip Op 51332(U) [12 Misc 3d 139(A)]

Decided on February 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 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
2005-591 K C.

Vista Surgical Supplies, Inc., as Assignee of Sara Padilla, Appellant,
against
Allstate Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 4, 2005. The order denied plaintiff’s motion for summary judgment, granted defendant’s cross motion for summary judgment and awarded defendant $250 in costs.

Order modified by denying defendant’s cross motion for summary judgment and deleting the provision awarding defendant $250 in costs; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies provided to its assignor, plaintiff did not establish its prima facie entitlement to summary judgment since it failed to conclusively show that it submitted its claim form to defendant (see 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]). Counsel’s affirmation was of no probative value since it was based upon allegations of a person without personal knowledge that the claim form was actually mailed to defendant (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 affidavit of plaintiff’s corporate officer failed to demonstrate submission of the claim form inasmuch as he did not state that he personally mailed the claim but merely stated that his file included the original proofs of mailing. Nor did his affidavit demonstrate that plaintiff followed a standard office practice or procedure designed to ensure that items were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Similarly, defendant’s cross motion for summary judgment should be denied in view of [*2]the circumstances surrounding the ambiguous post office documentation, thereby creating an issue of fact as to whether the subject claim form was ever mailed to defendant. In view of the foregoing, the provision of the order awarding defendant $250 in costs should be deleted.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: February 6, 2006