Magnezit Med. Care, P.C. v Allstate Ins. Co. (2006 NY Slip Op 50293(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 19, 2005. The order, insofar as appealed from, granted plaintiffs’ motion for summary judgment on the first cause of action regarding assignor Robert Gevorkov.

Order, insofar as appealed from, reversed without costs and plaintiffs’ motion for summary judgment on the first cause of action regarding assignor Robert Gevorkov denied.

Contrary to plaintiffs’ contention, defendant’s appeal was timely taken. According to the affidavit of service, defendant was served with the order with notice of entry on January 24, 2005 and, therefore, had 35 days from that date to take an appeal (CPLR 5513 [a], [d]; 2103, 5515). Defendant served plaintiffs with its notice of appeal on February 24, 2005. Since service of the notice of appeal was timely, we deem excusable the late filing of the notice of appeal on March 7, 2005 (see CPLR 5520 [a]; Messner v Messner, 42 AD2d 889 [1973]).

In an action to recover first-party no-fault benefits, a plaintiff establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the [*2]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]). In the instant case, plaintiffs failed to demonstrate an entitlement to summary judgment on the first cause of action regarding assignor Robert Gevorkov since they failed to adequately establish that they submitted the claim forms 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]). Proof of proper mailing requires evidence of “actual mailing or . . . a standard office practice or procedure
designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see also Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998]; Amaze Med. Supply v Allstate Ins. Co., 2 Misc 3d 138[A], 2004 NY Slip Op 50264[U] [App Term, 2d & 11th Jud Dists]; S & M Supply, Inc. v GEICO Ins., 2003 NY Slip Op 51192[U] [App Term, 2d & 11th Jud Dists]). Plaintiffs’ proof, the affidavit of Dr. 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 Robert Gevorkov 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 S & M Supply, Inc. v GEICO Ins., 2003 NY Slip Op 51192[U], supra; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists]; Jul & Pol Corp. v American Tr. Ins. Co., 2003 NY Slip Op 51153[U] [App Term, 2d & 11th Jud Dists]). Since plaintiffs did not provide proof of proper
mailing of the claim forms regarding assignor Robert Gevorkov, the lower court’s order, insofar as appealed from, should be reversed and plaintiffs’ motion for summary judgment as to assignor Gevorkov denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: February 28, 2006