Opinion
2004809KC
Decided April 29, 2005.
Appeal by plaintiff from so much of an order of the Civil Court, Kings County (E. Gesmer, J.), entered April 13, 2004, 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 the calculation of statutory interest and an assessment of attorney's fees.
PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
In this action to recover first-party no-fault benefits for medical equipment furnished its assignors, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the functional equivalent of the statutory claim forms ( 11 NYCRR 65-3.5 [a], [f]), setting forth the fact and amount of the losses 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; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d 11th Jud Dists]). We note that the affidavit of a plaintiff's "officer and billing manager" is a proper vehicle in which to assert the facts of a no-fault claimant's submission of a benefits application ( e.g. A.B. Med. Servs. PLLC v. Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d 11th Jud Dists]; see also King's Med. Supply, Inc. v. Hereford Ins. Co., 5 Misc 3d 55, 56 [App Term, 9th 10th Jud Dists 2004]).
The burden thus shifted to defendant to create a triable issue of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Absent a tolling of the statutory time ( Hospital for Joint Diseases v. ELRAC, Inc., 11 AD3d 432, 434; New York Presbyt. Hosp. v. Progressive Cas. Ins. Co., 5 AD3d 568, 570), defendant's conceded failure timely to pay or deny the claims within the prescribed 30-day claim determination period (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]) precludes its defenses with exceptions not herein relevant ( see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 NY2d 274, 282). Defendant sought to prove such tolling via alleged written requests for initial verification to plaintiff and three alleged follow-up verification requests which sought to examine each assignor under oath. (This court will not consider additional letters offered for the first time below in an attorney's sur-reply affirmation [ e.g. Kelsol Diamond Co. v. Stuart Lerner, Inc., 286 AD2d 586, 587 (2001); 622 Bldg. Co. v. Empire Blue Cross Blue Shield, 283 AD2d 202 (2001)]).
The initial verification letter with respect to the Briones claim for $1,175 was untimely and did not toll the statutory claim determination period. Defendant is therefore subject to the preclusion sanction as to that claim and summary judgment should have been granted absent the assertion of a defense that survives preclusion. While the remaining initial verification requests (which do not address all the claims at issue), were nominally timely ( 11 NYCRR 65-3.5 [a]), as were the follow-up written examination under oath (EUO) requests, there is no documentary proof of mailing nor an admission of receipt, and defendant's affiant, a claims examiner, asserted no personal knowledge of actual mailing or of facts creating a presumption of mailing ( Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679). Thus, defendant failed to create triable issues of fact as to the assignors' alleged failure to comply with the initial and follow-up verification requests ( e.g. Hospital for Joint Diseases v. Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [affiant's failure to assert personal knowledge of mailing and "his conclusory allegations regarding (the insurer's) office practices did not establish . . . that the defendant followed office practices 'geared so as to ensure the likelihood' that (the communications at issue) were always properly addressed and mailed on the date issued"]; Contemp. Med. Diag. Treatment, P.C. v. Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d 11th Jud Dists]; see also New York Hosp. Med. Ctr. of Queens v. New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641; S M Supply, Inc. v. GEICO Ins., 2003 NY Slip Op 51192[U] [App Term, 2d 11th Jud Dists] [same]).
Finally, it is noted that while verification EUOs are authorized by an amendment to the Insurance Regulations effective April 5, 2002 ( 11 NYCRR 65-1.1 [d]), because the Insurance Department "bases the revised regulations' applicability on the policy endorsement in effect when the claim is filed, to take advantage of the . . . [revision], an insurer must have the revised prescribed endorsement in new or renewed policies issued on or after that date" ( Ocean Diagnostic Imaging P.C. v. State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24498 [App Term, 2d 11th Jud Dists];
S M Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th 10th Jud Dists]). While plaintiff's claims were submitted subsequent to April 5, 2002, defendant's submissions failed to establish that the insurance policy, in effect when the EUOs were sought, contained an endorsement authorizing such verification ( see Star Med. Servs. P.C. v. Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d 11th Jud Dists 2004]; S M Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], supra). Accordingly, defendant's requests for EUOs cannot operate to toll the 30-day period. As the EUO requests were the only form of follow-up verification alleged, defendant failed to toll the prescribed claim determination period, rendering all denials untimely and precluding its defenses on this additional ground as well.
Accordingly, plaintiff's motion for summary judgment is granted and the matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.