Supreme Court, Appellate Term, Second Department, February 27, 2007

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Anthony J. Centone, P.C., White Plains, for respondent.

Memorandum.

Order reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff's motion for summary judgment was supported by an affirmation of counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff's establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

As plaintiff correctly asserted in the court below and on appeal, notwithstanding the fact that the denial of claim forms were timely on their face, defendant failed to establish that any of the forms were timely mailed within the prescribed 30-day period (11 NYCRR 65-3.8 [c]). Defendant's opposition papers lacked any documentary proof or an affidavit of a representative of defendant which would sufficiently demonstrate either actual mailing of the denials or give rise to a presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Accordingly, defendant was precluded from raising its proffered defense of lack of medical necessity as to the three claims in question (see e.g. Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 139[A], 2006 NY Slip Op 50582[U] [App Term, 2d & 11th Jud Dists 2006]), and plaintiff [*2]was therefore entitled to summary judgment.

In view of the foregoing, plaintiff's motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Weston Patterson, J. (dissenting and voting to affirm the order in the following memorandum). I disagree with the majority opinion and would vote to affirm the order on the ground that plaintiff failed to establish its entitlement to judgment as a{**15 Misc 3d at 35} matter of law. In support of its motion, plaintiff attaches a vague, nonspecific affidavit of its corporate officer Charles DeMarco. Nothing in the affidavit identifies what services were rendered, when they were rendered, the amount owed, and the dates the claims were mailed. Instead, the affidavit alleges that the "attached are my corporate business records for billing and are true copies of the no-fault claim." In the absence of any foundation for the admission of these records, I cannot agree that plaintiff sustained its burden of establishing a prima facie case (see Mega Supply & Billing, Inc. v Progressive Cas. Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50023[U] [App Term, 2d & 11th Jud Dists 2007]).

The fact that defendant raised no issue below or on appeal with respect to plaintiff's prima facie showing is irrelevant. A movant's failure to establish a prima facie case mandates denial of a summary judgment motion without regard for the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Having failed to sustain its burden of making a prima facie showing, plaintiff is not entitled to judgment as a matter of law.

Accordingly, I would vote to affirm the order below.

Pesce, P.J., and Belen, J., concur; Weston Patterson, J., dissents in a separate memorandum.