SZ Med. P.C.v.State-Wide Ins. Co.

Appellate Term of the Supreme Court of New York, Second DepartmentFeb 2, 2005
2005 N.Y. Slip Op. 50103 (N.Y. Misc. 2005)

2004-388 Q C.

Decided February 2, 2005.

Appeal by plaintiffs from an order of the Civil Court, Queens County (J. Golia, J.), entered June 10, 2003, denying their motion for summary judgment.

Order unanimously affirmed without costs.

PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.


In this action to recover assigned first-party no-fault benefits, plaintiffs' motion for summary judgment was supported by the affidavit of Janet Safir, "the practice and billing manager of each plaintiff company," who averred that she submitted to defendant the "claim forms and medical reports" which were annexed to the motion papers. There was, however, no allegation in the affidavit as to when the fifteen annexed claim forms were submitted. A plaintiff establishes a prima facie entitlement to summary judgment by offering evidentiary proof that it submitted statutory claim forms 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). No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which includes verification of all relevant information requested ( see 11 NYCRR 65.15 [g] [1], now 11 NYCRR 65-3.8 [a] [1]). In the instant case, in order to establish that payment on the claims being sued upon was overdue, plaintiffs had to demonstrate that the requisite 30 calendar days had elapsed, which they sought to do by relying upon defendant's letters, dated February 13, 2002, acknowledging receipt of claims, but not specifying the particular claims received. In the absence of any evidence as to when plaintiffs submitted their claim forms to defendant, and in the absence of any specification in defendant's letters of February 13, 2002 as to which claims it had received prior thereto, plaintiffs were unable to establish whether payments as to all, or even any, of the claims being sued upon were overdue. Accordingly, having failed to make a prima facie showing of entitlement to judgment as a matter of law, plaintiffs' motion for summary judgment was properly denied by the court below.