Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 51556(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 (Jack M. Battaglia, J.), entered July 6, 2005. The order granted defendant’s motion to dismiss the complaint to the extent of directing plaintiff to, inter alia, produce responses to defendant’s discovery demands, and denied plaintiff’s cross motion for summary judgment with leave to renew after completion of discovery.

Appeal from so much of the order as granted defendant’s motion to dismiss the complaint to the extent of directing plaintiff to, inter alia, provide responses to defendant’s discovery demands dismissed.

Order, insofar as reviewed, affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor. Defendant moved to dismiss plaintiff’s complaint for plaintiff’s failure to comply with defendant’s discovery demands and plaintiff cross-moved for summary judgment. By order entered July 6, 2005, the court below granted defendant’s motion to the extent of ordering plaintiff to, inter alia, produce responses to defendant’s discovery demands and also denied plaintiff’s cross motion for summary judgment with leave to renew after completion of discovery. Plaintiff failed to submit written opposition to defendant’s motion, but [*2]instead cross-moved for summary judgment without addressing defendant’s argument that it was entitled to discovery. Since so much of the order as granted defendant’s motion to the extent of directing plaintiff to, inter alia, provide responses to defendant’s discovery requests was entered on default, the appeal therefrom by plaintiff, a defaulting party, must be dismissed (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; see also Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]).

A provider establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). A plaintiff ordinarily establishes the “submission” of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Here, the affidavit of plaintiff’s corporate officer and the proof annexed thereto were insufficient to establish that plaintiff mailed the claims to defendant since “there is no evidence that th[e] claim[s] w[ere] mailed to [defendant] under that certified mail receipt number” (New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claim was actually mailed to defendant and, as such, is unsubstantiated hearsay and has no probative value (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 denial of claim form annexed to plaintiff’s moving papers was insufficient to establish that plaintiff sent, and that defendant received, the claims since items 23-32 on said denial of claim form, including the date on which defendant received the claims, were not filled out by defendant (cf. A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Thus, plaintiff failed to establish its prima facie entitlement to summary judgment. Accordingly, the lower court properly denied plaintiff’s cross motion for summary judgment.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

[*3]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: July 26, 2006