Opinion
2005-765 N C.
Decided February 2, 2006.
Appeal from an order of the District Court of Nassau County, Third District (Scott Fairgrieve, J.), entered February 28, 2005. The order granted plaintiff's motion for summary judgment.
Order affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue ( see Insurance Law § 5106; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742; Damadian MRI in Elmhurst v. Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700[U] [App Term, 9th 10th Jud Dists]). The burden therefore shifted to defendant to show a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).
In the case at bar, the defendant failed to establish that the denial was timely mailed within the 30-day prescribed claim determination period. Defendant failed to submit any documentary proof or an affidavit from one with personal knowledge establishing that the denial was sent to plaintiff ( see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 226 AD2d 613). Nor did defendant create a presumption of mailing by submission of an affidavit describing the standard operating procedures it uses to ensure that its denial was mailed ( see e.g. Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679; Ocean Diagnostic Imaging P.C. v. General Assur. Co., 7 Misc 3d 127 [A], 2005 NY Slip Op 50435[U] [App Term, 9th 10th Jud Dists]). Defendant is therefore precluded from raising the defense that the procedure was not medically necessary because defendant neither denied the claim within 30 days of receipt of the claim nor effectively extended the 30-day period ( see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 NY2d 274, 282).
Consequently, the motion court properly granted plaintiff's motion for summary judgment.
Rudolph, P.J., Angiolillo and McCabe, JJ., concur.