Opinion
2005-591 KC.
Decided February 6, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 4, 2005. The order denied plaintiff's motion for summary judgment, granted defendant's cross motion for summary judgment and awarded defendant $250 in costs.
Order modified by denying defendant's cross motion for summary judgment and deleting the provision awarding defendant $250 in costs; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
In this action to recover first-party no-fault benefits for medical supplies provided to its assignor, plaintiff did not establish its prima facie entitlement to summary judgment since it failed to conclusively show that it submitted its claim form 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]). Counsel's affirmation was of no probative value since it was based upon allegations of a person without personal knowledge that the claim form was actually mailed to defendant ( 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 affidavit of plaintiff's corporate officer failed to demonstrate submission of the claim form inasmuch as he did not state that he personally mailed the claim but merely stated that his file included the original proofs of mailing. Nor did his affidavit demonstrate that plaintiff followed a standard office practice or procedure designed to ensure that items were properly addressed and mailed ( see Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679). Consequently, plaintiff's motion for summary judgment was properly denied.
Similarly, defendant's cross motion for summary judgment should be denied in view of the circumstances surrounding the ambiguous post office documentation, thereby creating an issue of fact as to whether the subject claim form was ever mailed to defendant. In view of the foregoing, the provision of the order awarding defendant $250 in costs should be deleted.
Pesce, P.J., Weston Patterson and Belen, JJ., concur.