Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered September 19, 2008. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint. The sole issue raised by plaintiff on appeal is the sufficiency of the affidavit executed by MVAIC's claims representative to establish that the denial of claim form was mailed pursuant to MVAIC's office practices and procedures. As the affiant described, in detail, based on the affiant's personal knowledge, defendant's standard office practices and procedures used to ensure that said denial of claim form was properly mailed, the affidavit of defendant's claim representative sufficiently established the timely mailing of the denial of claim form (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order granting MVAIC's motion for summary judgment is affirmed.

Steinhardt, J.P., and Pesce, J., concur.

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to reverse the order and deny defendant's motion for summary judgment dismissing the complaint in the following memorandum: [*2]

The issue on appeal is whether a timely denial was mailed to plaintiff.

Defendant presented an affidavit from a claims representative attesting to a procedure wherein a denial is placed in an addressed envelope and then dropped in the claims department's "outgoing mail basket." According to the claims representative, the contents of the mail basket are collected daily by a mailroom employee, who then affixes postage to the envelopes and "puts it in the mailbox" for delivery by the U.S. postal service. In my opinion, such an affidavit is insufficient to demonstrate mailing, for it merely concludes that the mail is sent. Defendant's affiant did not demonstrate firsthand knowledge of the procedures of the mailroom to establish that the denial had been mailed to plaintiff (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Clark v Columbian Mut. Life Ins. Co., 221 AD2d 227 [1995]). Consequently, defendant's motion for summary judgment dismissing the complaint should have been denied.
Decision Date: August 24, 2010