February 3, 2006

Modern Psychiatric Servs. P.C. v Progressive Ins. Co. (2006 NY Slip Op 50143(U))

Headnote

The court considered the fact that the plaintiff had submitted a statutory claim form for first-party no-fault benefits for medical services provided to the injured assignor. The main issue decided was whether the defendant had established that verification requests were timely mailed. The court held that the defendant failed to prove the timely mailing of the verification requests and did not create a presumption of mailing by providing evidence of the standard operating procedures used to ensure that the verification requests were mailed. As a result, the court affirmed the order granting the plaintiff's motion for summary judgment and denying the defendant's cross motion.

Reported in New York Official Reports at Modern Psychiatric Servs. P.C. v Progressive Ins. Co. (2006 NY Slip Op 50143(U))

Modern Psychiatric Servs. P.C. v Progressive Ins. Co. (2006 NY Slip Op 50143(U)) [*1]

Modern Psychiatric Servs. P.C. v Progressive Ins. Co.

2006 NY Slip Op 50143(U) [10 Misc 3d 145(A)]

Decided on February 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ
2005-465 N C.

Modern Psychiatric Services P.C., a/a/o Bajram Lukovic, Respondent,
against
Progressive Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Erica L. Prager, J.), entered January 26, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment and to dismiss the complaint.

Order affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services it provided to the injured assignor. Plaintiff established a prima facie entitlement to summary judgment by proof 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; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The burden, therefore, shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the case at bar, the defendant failed to establish that the verification requests were timely mailed. Defendant neither submitted an affidavit from one with personal knowledge alleging that the verification requests were mailed to plaintiff (see e.g. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]), nor did defendant create a presumption of mailing by submission of an affidavit adequately describing the standard operating procedures it uses to ensure that its verification requests were mailed (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Ocean Diagnostic Imaging P.C. v General Assur. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50435[U] [App Term, 9th & 10th Jud Dists]). Absent proof of a tolling of the 30-day claim determination period (11 NYCRR 65.15 [*2][d], now 11 NYCRR 65-3.8), defendant is now precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including any deficiency in the assignment (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N.Y. v Aetna
Cas. & Sur. Co., 233 AD2d 433 [1996]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Consequently, the motion court properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion.

Rudolph, P.J., Angiolillo and McCabe, JJ., concur.
Decision Date: February 03, 2006