New York and Presbyterian Hospital v. Allstate Insurance Company, 2005-02857.
| Decision Date | 02 May 2006 |
| Docket Number | 2005-02857. |
| Citation | 29 A.D.3d 547,2006 NY Slip Op 03558,814 N.Y.S.2d 687 |
| Parties | NEW YORK AND PRESBYTERIAN HOSPITAL, as Assignee of RICHARD UDLAND, et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs, as the proponent of the summary judgment motion, had the initial burden of showing their prima facie entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). The plaintiffs failed to submit a proper affidavit of service to establish as a matter of law that the subject hospital bill was mailed and received by the defendant.
Generally, "proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee" (Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998] [internal quotation marks omitted]). "The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). Here, no presumption of mailing was created because the affidavit of the plaintiffs' billing service representative did not state that he actually mailed the particular claim alleged in the second cause of action to the defendant Allstate Insurance Company (hereinafter Allstate) or describe his office's practice and procedure for mailing no-fault claims to insurers (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]).
Contrary to the plaintiffs' contentions, the certified mail receipt and the United States Postal Service "Track and Confirm"...
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...proof of actual mailing or a description of its office's practice and procedure for mailing (see New York & Presbyt. Hosp. v. Allstate Ins. Co. , 29 A.D.3d 547, 814 N.Y.S.2d 687 [2d Dept. 2006] ; Citibank, N.A. v. Wood , 150 A.D.3d 813, 55 N.Y.S.3d 109 [2d Dept. 2017] ; Citimortgage Inc. v.......
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...Emergency Clinic , 38 A.D.3d 1110, 832 N.Y.S.2d 322 (3d Dept. 2007), § 17:15 New York and Presbyterian Hospital v. Allstate Ins. Co. , 29 A.D.3d 547, 814 N.Y.S.2d 687 (2d Dept. 2006), § 8:20 New York Central Mutual Fire Insurance Co v. Turnerson’s Electric Inc., 280 A.D.2d 652, 721 N.Y.S.2d......
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Character & habit
...where there were a suicient number of such incidents to infer negligence. New York and Presbyterian Hospital v. Allstate Ins. Co. , 29 A.D.3d 547, 814 N.Y.S.2d 687 (2d Dept. 2006). In the absence of a hospital representative’s statement in his aidavit that he actually mailed the no-fault cl......
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Character & habit
...where there were a suicient number of such incidents to infer negligence. New York and Presbyterian Hospital v. Allstate Ins. Co. , 29 A.D.3d 547, 814 N.Y.S.2d 687 (2d Dept. 2006). In the absence of a hospital representative’s statement in his aidavit that he actually mailed the no-fault cl......
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Character & habit
...where there were a sufficient number of such incidents to infer negligence. New York and Presbyterian Hospital v. Allstate Ins. Co., 29 A.D.3d 547, 814 N.Y.S.2d 687 (2d Dept. 2006). In the absence of a hospital representative’s statement in his affidavit that he actually mailed the no-fault......