Opinion
2008-1788 N C.
Decided June 29, 2009.
Appeal from an order of the District Court of Nassau County, Third District (Gary Franklin Knobel, J.), dated June 23, 2008. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
Order affirmed without costs.
PRESENT: RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for, inter alia, summary judgment dismissing the complaint on the ground, among others, that defendant did not receive the claim forms upon which plaintiff seeks to recover. The District Court denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment. The instant appeal by plaintiff ensued.
A provider establishes its 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 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742). Submission of the claim form is usually established by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. Such presumption may be created either by proof of actual mailing, or by 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). The affirmation of plaintiff's "primary doctor and principal shareholder" was insufficient to establish actual mailing of the claim forms to defendant or that plaintiff had a standard office practice or procedure designed to ensure that items are properly addressed and mailed ( see New York Presbyt. Hosp. v Allstate Ins. Co. , 29 AD3d 547 ; Impulse Chiropractic, P.C. v Travelers Ins. Co. , 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U] [App Term, 2d 11th Jud Dists 2006]). Moreover, plaintiff's attorney's affirmation was not based on personal knowledge that the claims were actually mailed to defendant and, therefore, has no probative value ( see Impulse Chiropractic, P.C., 14 Misc 3d 127 [A], 2006 NY Slip Op 52469[U]). Consequently, plaintiff failed to make a prima facie showing of its entitlement to summary judgment and the District Court properly denied its motion.
Since plaintiff failed to prove that it mailed the subject claims to defendant and, in support of its cross motion for summary judgment dismissing the complaint, defendant established that it never received the claims from plaintiff, the District Court properly granted defendant's cross motion ( see Vista Surgical Supplies Inc. v Allstate Ins. Co. , 14 Misc 3d 129[A], 2006 NY Slip Op 52520[U] [App Term, 2d 11th Jud Dists 2006]). We pass on no other issue.
The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated ( see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.
Scheinkman, J., taking no part.