Opinion
No. 570980/11.
2012-05-29
COMPREHENSIVE NEUROLOGICAL SERVICES, PA a/a/o Aleksander Gurvich, Plaintiff–Respondent, v. TRI–STATE CONSUMER INSURANCE COMPANY, Defendant–Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), dated December 15, 2010, which denied its motion for summary judgment dismissing the complaint.
Present: LOWE, III, P.J., SCHOENFELD, HUNTER, JR., JJ.
PER CURIAM.
Order (Elizabeth A. Taylor, J.), dated December 15, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
In opposition to the defendant-insurer's prima facie showing of entitlement to judgment as a matter of law, plaintiff failed to raise a material issue requiring a trial of its claim for no-fault first-party benefits. The affidavit of plaintiff's medical billing supervisor, while explaining in general terms the office procedure followed by plaintiff in “document[ing] receipt of [verification] request[s] into our computer system,” failed to set forth any facts tending to indicate that the affiant or anyone else in plaintiff's billing department in fact checked the “computer system” to ascertain whether the verification letters shown to have been sent by defendant had been “documented” as received. The professed status of plaintiff's affiant as “custodian” of the case file was insufficient, on this record and without more, to overcome the presumption of receipt created by defendant's proof of proper mailing of its verification letters ( see Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829–830 [1978] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur