Opinion
2003-365 KC.
Decided May 20, 2004.
Appeal by plaintiff from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 13, 2003, as denied its motion for summary judgment.
Order insofar as appealed from unanimously reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In its moving papers, plaintiff argued that because the defendant failed to timely deny its claim within the statutory 30-day period, it was entitled to summary judgment as a matter of law. In order to establish a prima facie entitlement to summary judgment, plaintiff was required to show that it submitted a complete proof of claim to defendant which defendant neither paid nor denied within 30 days ( see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v. Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d 11th Jud Dists]). The presumption that an addressee received an item by mail may be created by either proof of actual mailing or 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; Tracy v. William Penn Life Ins. Co. of N.Y., 234 AD2d 745; Pardo v. Central Coop. Ins. Co., 223 AD2d 832). Plaintiff attached to its moving papers a signed post office ledger with defendant's name which was date-stamped September 18, 2001. In addition, in his affidavit in support of plaintiff's motion, Mr. Bronsteyn (plaintiff's president) stated that plaintiff mailed the bills to defendant on September 18, 2001. Thus, plaintiff made out a prima facie case of its entitlement to summary judgment thereby shifting the burden to the defendant to come forward with a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 NY2d 320).
In support of defendant's motion for summary judgment and in opposition to plaintiff's motion, defendant's attorney merely argued that defendant's denial letter was timely since it was dated November 7, 2001 and stated therein that defendant received plaintiff's claim on October 18, 2001. Since defendant's attorney lacked personal knowledge of the underlying facts, and defendant's business records and standard office practices regarding mailings, his affirmation was of no probative value ( see Barton v. County of Monroe, 92 AD2d 746). Inasmuch as defendant failed to establish that a triable issue of fact exists, the lower court should have granted plaintiff's motion for summary judgment. The matter is remanded for the calculation of statutory interest and attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.