Opinion
2003-119 KC.
Decided February 26, 2004.
Appeal by plaintiff from an order of the Civil Court, Kings County (K. Rothenberg, J.), entered November 4, 2002, denying its motion for summary judgment.
Order unanimously reversed without costs, plaintiffs motion for summary judgment granted in the principal sum of $517 and matter remanded to the court below for calculation of statutory interest and an assessment of attorney's fees.
PRESENT: ARONIN, J.P., GOLIA and RIOS, JJ.
Plaintiff commenced this action to recover $517 in first-party no-fault benefits for health services it provided to its assignor. Thereafter, it moved for summary judgment on the ground that defendant did not pay or deny its claim within 30 days as required by Insurance Law § 5106 (a). Upon a review of the record, we find that plaintiff established its prima facie entitlement to summary judgment, by showing that it submitted a completed claim to defendant ( Amaze Med. Supply Inc. v. Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d 11th Jud Dists]), which defendant acknowledged receiving on February 2, 2001 and denied by letter of March 21, 2001.
The burden then shifted to defendant to show a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Defendant, however, did not meet this burden since it failed to establish by competent evidence that it timely sent a verification request thereby tolling the commencement of the 30-day period in which to deny or pay the claim ( see e.g. Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 226 AD2d 613). Plaintiff did not admit to receiving said requests. Contrary to the determination of the court below, we find that the claim examiner's affidavit raises no triable issue of fact as to whether a request was timely sent to plaintiff since she did not state that she had personal knowledge that a request was mailed to plaintiff ( see Rue v. Stokes, 191 AD2d 245), and she did not create a presumption of mailing by describing the standard operating procedures defendant used to ensure that its requests are properly mailed ( see e.g. Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679). Accordingly, plaintiffs motion for summary judgment is granted and the matter is remanded for the calculation of statutory interest and attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereto.