Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered June 21, 2006, deemed from the judgment entered on September 1, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 21, 2006 order which, inter alia, granted plaintiff's cross motion for summary judgment to the extent of granting it partial summary judgment, awarded plaintiff the principal sum of $5,381.64.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-
moved for summary judgment. Insofar as is relevant to this appeal, the court granted plaintiff's cross motion for summary judgment to the extent of awarding it partial summary judgment in the principal sum of $5,381.64, finding that the affidavit submitted by defendant did not establish the timely mailing of the denial of claim forms. The instant appeal by defendant ensued.

Where the issue of whether a party seeking summary judgment has made a prima facie showing in support of the motion is neither raised nor passed upon in the court of original instance and is not raised on appeal, an appellate court may, in its discretion, decline to pass upon the issue. In the instant case, we decline to pass on this issue. However, with respect to the assertion by the dissent that "courts have established the barest requirements for a claimant to [*2]establish a prima facie case," we note that the requisite elements of a prima facie showing in an action to recover assigned first-party no-fault benefits are well established in Appellate Division case law (see e.g. Westchester Med. Ctr. v AIG, Inc., 36 AD3d 900 [2007]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

The affidavit executed by defendant's no-fault examiner did not establish the timely mailing of the verification requests or the denial of claim forms since it failed to sufficiently set forth the standard office practice and procedure used to ensure that the verification requests and denial of claim forms were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, defendant is precluded from asserting its defense that the services provided were not medically necessary (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]) and, as a result, it did not establish the existence of a triable issue of fact so as to defeat plaintiff's cross motion seeking summary judgment on the claims totaling $5,381.64. Accordingly, the judgment is affirmed.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the judgment, vacate so much of the order entered June 21, 2006 as granted plaintiff's cross motion for summary judgment to the extent of awarding plaintiff partial summary judgment, and deny said cross motion.

In the first instance, I note that one of the most fundamental principles of jurisprudence is that in order for a plaintiff to obtain the imprimatur that comes with receiving a favorable court judgment, the plaintiff must establish that such a judgment is warranted and should be awarded under the circumstances of the case, namely by establishing a prima facie case.^[FN1]

The Court of Appeals, in Alvarez v Prospect Hosp. (68 NY2d 320, 324 [1986]), made that specific point:
"As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact."

Trial and appellate courts should always consider the issue of whether a prima facie [*3]showing has been made, irrespective of whether the issue was raised by the defendant. This obligation was addressed by the Appellate Division, First Department, in the case of Cugini v System Lbr. Co. (111 AD2d 114, 115 [1983]), where the majority wrote:
"While the failure to submit an affidavit of merit in response to a motion for summary judgment seeking dismissal of an action does, as stated in the dissent, mandate a dismissal without condition, such presupposes that the movant, in the first instance, has made the requisite showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact (emphasis added)."

The concept of prima facie then is simply that before any matter may proceed to judgment, the party instituting the matter must establish proof sufficient to meet such obligation (see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). A prima facie showing must be established without regard to, or review of, opposition papers. Even if the defendant were to default, the papers submitted must be able to withstand scrutiny on their own.

The majority herein states that:
"Where the issue of whether a party seeking summary judgment has made a prima facie showing in support of the motion is neither raised nor passed upon in the court of original instance and is not raised on appeal, an appellate court may, in its discretion, decline to pass upon the issue. In the instant case, we decline to pass on the issue."

Notwithstanding this pronouncement, the Court of Appeals has frequently stated that "the proponent of a summary judgment must make a prima facie showing . . ." (Alvarez v Prospect Hosp., 68 NY2d at 324 [emphasis added]). Whether the majority chooses to address the issue or not, like the dissent in Cugini, it has implicitly found that a prima facie showing has been made.

Indeed, unlike in other proceedings, in no-fault matters, courts have established the barest requirements for a claimant to establish a prima facie case. I see no basis for relieving the provider from such barest of obligations (see e.g. Dan Med. P.C. v NY Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). To the extent that I may have held otherwise, I no longer follow those tenets.

In addition, I disagree with the majority's holding that defendant's affidavit fails to sufficiently set forth the standard office practice and procedure used to insure that the denial of claim forms were properly addressed and mailed, and, by extension, I similarly conclude that the verification requests were properly mailed. To me, the affidavit of defendant's no-fault examiner, which set forth the mailing practices and procedures regarding the denial of claim forms and [*4]verification requests, was sufficient to deny plaintiff's cross motion for summary judgment.

In support of its findings, the majority cites to the case of New York & Presbyt. Hosp. v Allstate Ins. Co. (29 AD3d 547 [2006]). That case, in turn, cites to Hospital for Joint Diseases v Nationwide Mut. Ins. Co. (284 AD2d 374, 375 [2001]), which found that the defendant failed to establish that it mailed a denial of claim because:
"... the employee had no personal knowledge that the claim form had been mailed..." (emphasis added).

In the present case, however, defendant's affidavit specifically stated that:
"... I have personal knowledge that in compliance with that policy and business duty ... the denial of claim forms were mailed..." (emphasis added).

It should also be noted that the Court of Appeals addressed this issue only upon the claimants' affirmative assertion that they did not receive any notice from the insurer. In Nassau Ins. Co. v Murray (46 NY2d 828, 829 [1978]), the Court found:
"Where, as here, the proof exhibits an office practice and procedure followed by the insurers in the regular course of their business, which shows that the notices . . . have been duly addressed and mailed, a presumption arises that those notices have been received by the insureds ..."

The only caveat raised by the Court of Appeals is that:
"... office practice must be geared so as to ensure the likelihood that a notice . . . is always properly addressed and mailed" (id. at 830).

As stated in the affidavit of defendant's no-fault examiner: "It is Lumbermens' office practice and Lumbermens' claims examiners are under a business duty to mail all denial of claim forms to the address [the] applicant lists on the bills on the same day the denials are generated and signed."

It is my belief that, under the present circumstances, the above caveat was complied with. [*5]

Therefore, I find that the denial was timely sent by defendant to plaintiff and that the notice was predicated upon a peer review report which found that the medical treatments were not medically necessary. Consequently, I would deny plaintiff's motion for summary judgment.
Decision Date: July 18, 2008