Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered November 9, 2005. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see e.g. Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, plaintiff's moving papers were insufficient to establish the
mailing of the appended NF-3 form to defendant. However, inasmuch as defendant, in its opposition papers, acknowledged receipt of the claim on August 14, 2004, both in the affidavit of defendant's claims examiner as well as in its denial of claim form, the deficiency in plaintiff's moving papers concerning proof of mailing of the claim in question was cured (see Oleg Barshay, DC, P.C. v State Farm Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26496 [App Term, 2d & 11th Jud Dists]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 126[A], 2006 NY Slip Op 50858[U] [App Term, 2d & 11th Jud Dists]; PDG Psychological P. C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the burden shifted to defendant to demonstrate a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The affidavit of defendant's claims examiner regarding defendant's procedure with respect to the mailing of items, particularly the request for "additional verification" on August 24, 2004 and the denial of claim form on September 21, 2004, contained a sufficiently detailed [*2]description of "a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]), so as to give rise to a presumption of proper mailing. Consequently, defendant established by competent evidence that it timely mailed said verification request on August 24, 2004 (see 11 NYCRR 65-3.5). Moreover, defendant's claims examiner averred in her affidavit (and the denial of claim form indicates) that the requested information was received by defendant on August 30, 2004. Accordingly, it appears that plaintiff received the verification request, notwithstanding plaintiff's counsel's allegations that after plaintiff submitted its claim form, defendant "completely neglected to respond." In view of the fact that defendant established by competent evidence that the denial of claim form, setting forth a denial based on lack of medical necessity, was mailed on September 21, 2004, plaintiff's proof of claim was timely denied (see 11 NYCRR 65-3.8 [a] [1]). Defendant, therefore, was not precluded from raising its defense of lack of medical necessity in its opposition to plaintiff's motion for summary judgment, which defense raised a triable issue of fact. Accordingly, plaintiff's motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: January 2, 2007