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Health Needles Acupuncture, P.C. As Assignee of Celesta Tejeda v. United Services Automobile Association

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


April 9, 2013

HEALTH NEEDLES ACUPUNCTURE, P.C. AS ASSIGNEE OF CELESTA TEJEDA,
RESPONDENT,
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered July 19, 2011.

Health Needles Acupuncture, P.C. v United Servs. Auto. Assn.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 9, 2013

PRESENT: RIOS, J.P., WESTON and ALIOTTA, JJ

The order granted plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment. Although defendant had denied the portions of the claims at issue on the ground that the amount sought exceeded the amount allowed by the workers' compensation fee schedule, the Civil Court found that, in opposition to plaintiff's motion, defendant had failed to raise a triable issue of fact because an out-of-state affidavit executed by an employee of defendant's third-party vendor, which had reviewed plaintiff's claims and had printed and mailed denial of claim forms on defendant's behalf, had not been properly notarized and was accompanied by a certificate of conformity which did not comply with the requirements of CPLR 2309 (c).

Inasmuch as the sufficiency of plaintiff's prima facie case has not been challenged by defendant, either in opposition to plaintiff's motion for summary judgment or in its appellant's brief (see State Farm Fire & Cas. Co. v LiMauro, 103 AD2d 514 [1984]), we do not pass upon the propriety of the determination of the Civil Court with respect thereto.

An insurer raises a triable issue of fact as to whether a denial of claim was timely mailed by submitting admissible evidence, in the form of an affidavit of a person with personal knowledge of actual mailing or knowledge of "standard office practices or procedures designed to ensure that items were properly addressed and mailed" (St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). In opposition to plaintiff's motion, defendant submitted affidavits from two of its claims representatives, an affidavit from an employee of its third-party vendor, and an affidavit from an employee of the latter's mailing service which, defendant contended, when viewed together, raised a triable issue of fact as to whether the denial of claim forms at issue were timely mailed. However, none of those affidavits, even when viewed collectively, establish actual mailing or demonstrate how the office practices and procedures described in those affidavits were "designed to ensure that [the] items were properly addressed and mailed" (St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124). Consequently, defendant has failed to demonstrate that it is not precluded from interposing its proffered defense that the amounts sought were in excess of the workers' compensation fee schedule (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

In view of the foregoing, we pass on no other issue.

Accordingly, the order is affirmed, albeit for reasons other than those stated by the Civil Court.

Rios, J.P., Weston and Aliotta, JJ., concur. Decision Date: April 09, 2013

20130409

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