February 26, 2004

S & M Supply v Geico Ins. (2004 NY Slip Op 50502(U))

Headnote

The court considered the fact that the plaintiff had submitted a completed claim to the defendant for first-party no-fault benefits and had not received payment or denial within the required 30 days. The main issue was whether the defendant had timely sent a verification request to the plaintiff, which would have tolled the 30-day period for denial or payment. The holding of the court was that the plaintiff established its entitlement to summary judgment by showing that the claim was submitted and acknowledged by the defendant, and the burden then shifted to the defendant to show a triable issue of fact, which it failed to do. Therefore, the plaintiff's motion for summary judgment was granted in the principal sum of $517, and the matter was remanded for the calculation of statutory interest and attorney's fees.

Reported in New York Official Reports at S & M Supply v Geico Ins. (2004 NY Slip Op 50502(U))

S & M Supply v Geico Ins. (2004 NY Slip Op 50502(U)) [*1]

S & M Supply v GEICO Ins.

2004 NY Slip Op 50502(U)

Decided on February 26, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:ARONIN, J.P., GOLIA and RIOS, JJ.
NO. 2003-119 K C

S & M SUPPLY INC. a/a/o Ioulia Napalkova, Appellant, –
against
GEICO INSURANCE, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (K. Rothenberg, J.), entered November 4, 2002, denying its motion for summary judgment.

Order unanimously reversed without costs, plaintiffs motion for summary judgment granted in the principal sum of $517 and matter remanded to the court below for calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff commenced this action to recover $517 in first-party no-fault benefits for health services it provided to its assignor. Thereafter, it moved for summary judgment on the ground that defendant did not pay or deny its claim within 30 days as required by Insurance Law § 5106 (a). Upon a review of the record, we find that plaintiff established its prima facie entitlement to summary judgment, by showing that it submitted a completed claim to defendant (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), which defendant acknowledged receiving on February 2, 2001 and denied by letter of March 21, 2001.

The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant, however, did not meet this burden since it failed to establish by competent evidence that it timely sent a verification request thereby tolling the commencement of the 30-day period in which to deny or pay the claim (see e.g. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]). Plaintiff did not admit to receiving said requests. Contrary to the determination of the court below, we find that the claim examiner’s affidavit raises no triable issue of fact as to whether a request was timely sent to plaintiff since she did not state that she had personal knowledge that a request was mailed to plaintiff (see Rue v Stokes, 191 AD2d 245 [1993]), and she did not create a presumption of [*2]mailing by describing the standard operating procedures defendant used to ensure that its requests are properly mailed (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Accordingly, plaintiffs motion for summary judgment is granted and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereto.
Decision Date: February 26, 2004