Opinion
2003-441 K C.
Decided April 9, 2004.
Appeal by plaintiff from so much of an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered February 11, 2003, as denied its motion for summary judgment.
Order unanimously affirmed without costs.
PRESENT:PESCE, P.J., GOLIA and RIOS, JJ.
In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment on the ground that defendant failed to either pay or timely deny its claims within the statutory 30-day period after receiving a complete proof of claim from plaintiff ( see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v. Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d 11th Jud Dists]). Plaintiff presented evidence of actual mailing of the bills on August 23, 2001 and September 14, 2001 which created the presumption that the bills were received by defendant ( see Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679). Defendant submitted an affidavit of one of its claims representatives in which he stated that the aforementioned bills were received by the defendant on August 28, 2001 and October 18, 2001. The claims representative further stated that the denial letters were mailed on September 25, 2001 and October 31, 2001. Defendant also attached copies of the denial letters indicating that the bills were received on the aforementioned dates. Inasmuch as defendant established that a triable issue of fact exists, to wit, that the claims were timely denied, the lower court properly denied plaintiff's motion for summary judgment ( see Alvarez v. Prospect Hosp., 68 NY2d 320; Zuckerman v. City of New York, 49 NY2d 557).