Opinion
2008-597 Q C.
Decided May 8, 2009.
Appeal from a decision of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), dated July 7, 2005, deemed from a judgment of the same court entered December 12, 2005 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.
Judgment affirmed without costs.
PRESENT: WESTON, J.P., GOLIA and STEINHARDT, JJ.
At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff's sole witness, its biller, testified that he generated the bills at issue and that he personally mailed them. Defendant called no witnesses. After trial, the Civil Court found in favor of defendant and dismissed the complaint, determining that plaintiff had failed to establish that the bills were unpaid. This appeal by plaintiff ensued. A judgment was subsequently entered.
A provider generally establishes its prima facie case by proof of the submission of a statutory claim form, setting forth the fact and 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). In the case at bar, plaintiff failed to adduce evidence establishing that payment of the no-fault benefits at issue was overdue. Contrary to plaintiff's contention, neither the admission of its bills into evidence nor plaintiff's prosecution of this action gives rise to an inference that the bills were overdue or dispenses with plaintiff's obligation to establish this element of its prima facie case. Accordingly, the judgment is affirmed.
Weston, J.P., Golia and Steinhardt, JJ., concur.