Opinion
2005-1810 K C.
Decided November 17, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 19, 2005. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the action.
Order modified by denying defendant's cross motion for summary judgment; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
Proof that plaintiff submitted a claim, setting forth the fact and the amount of the loss sustained, is an essential element of plaintiff's prima facie case to recover first-party no-fault benefits ( see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742). In the instant case, due to plaintiff's failure to prove mailing of its claims, the burden of proof never shifted to defendant and the court properly denied plaintiff's motion for summary judgment ( see Magnezit Med. Care P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 135 [A], 2006 NY Slip Op 50473[U] [App Term, 2d 11th Jud Dists]; Magnezit Med. Care, P.C. v Allstate Ins. Co., 11 Misc 3d 129 [A], 2006 NY Slip Op 50293[U] [App Term, 2d 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp., 8 Misc 3d 130 [A], 2005 NY Slip Op 51047[U] [App Term, 2d 11th Jud Dists]).
As for defendant's cross motion, it, too, should have been denied. Other than defense counsel's conclusory affirmation stating that plaintiff "cannot show" timely mailing, defendant offers no admissible proof to establish that it never received plaintiff's claim or that the claim was submitted beyond the statutory deadline. Accordingly, defendant failed to make a prima facie showing entitling it to judgment as a matter of law.
Pesce, P.J., Weston Patterson and Belen, JJ., concur.