Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 50473(U))

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 January 18, 2005. The order granted plaintiffs’ motion for summary judgment.

Order reversed without costs and plaintiffs’ motion for summary judgment denied.

In an action to recover 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]). In the instant case, plaintiffs failed to establish that they submitted the claim forms to defendant. Plaintiffs’ proof, consisting of the affidavit of Samira Ovshayev, who described herself as a principal of Magnezit Medical Care, P.C., made no reference to said plaintiff’s standard office mailing practices or procedures, and the bare averment that the “required proof of claims [were submitted] in a timely manner” and that bills for the services rendered to the [*2]respective assignors were mailed to defendant on given dates did not establish that she had personal knowledge that the claim forms were timely mailed to defendant (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]). While an insurer defendant’s denial of claim forms, indicating the dates on which the claims were received, can be deemed adequate to establish that the plaintiff sent, and that the defendant received, the claims (see Careplus Med. Supply Inc. v State-Wide Ins. Co., ___ Misc 3d ___, 2005 NY Slip Op 25545 [App Term, 2d & 11th Jud Dists]; Ultra Diagnostics Imaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th Jud Dists 2005]), in the instant case, there are discrepancies between the claim forms attached to the plaintiffs’ moving papers and the defendant’s denial of claim forms, which are not explained on the record. Accordingly, said denial of claim forms are inadequate to establish mailing of the claim forms. Since plaintiffs did not provide proof of proper mailing of the claim forms, the order of the court below should be reversed and plaintiffs’ motion for summary judgment denied.

Weston Patterson, J.P., and Belen, JJ., concur.

Golia, J., concurs in a separate memorandum.

MAGNEZIT MEDICAL CARE, P.C.
a/a/o BEATA OCHMAN, EDWIN ROBLES,
GREGOR SHVARTSMAN and
THE LAW OFFICE OF MOSHE D. FULD, P.C.,

Respondents,

-against-

NEW YORK CENTRAL MUTUAL FIRE INS. CO.,
Appellant.

Golia, J., 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 disagree 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: March 27, 2006