August 5, 2022

PFJ Med. Care, P.C. v Nationwide Ins. (2022 NY Slip Op 50783(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York, Kings County, which granted the branches of defendant's motion seeking summary judgment dismissing the first through seventh and tenth causes of action, and denied plaintiff's cross motion for summary judgment. The main issues decided were whether the defendant was entitled to summary judgment dismissing the causes of action and whether the plaintiff was entitled to summary judgment on the eighth and ninth causes of action. The court affirmed the order, ruling that the defendant was entitled to summary judgment dismissing the first through seventh and tenth causes of action, and that the plaintiff's contention lacked merit. Additionally, the court found that the affidavit submitted by the plaintiff's owner was insufficient to give rise to a presumption that the claim forms had been timely mailed to and received by the defendant, and therefore, the branches of plaintiff's cross motion seeking summary judgment on the eighth and ninth causes of action were properly denied.

Reported in New York Official Reports at PFJ Med. Care, P.C. v Nationwide Ins. (2022 NY Slip Op 50783(U))

PFJ Med. Care, P.C. v Nationwide Ins. (2022 NY Slip Op 50783(U)) [*1]

PFJ Med. Care, P.C. v Nationwide Ins.

2022 NY Slip Op 50783(U) [76 Misc 3d 128(A)]

Decided on August 5, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 5, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1380 K C

PFJ Medical Care, P.C., as Assignee of Ferril, Gabriel, Appellant,
against
Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 12, 2019. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first through seventh and tenth causes of action, and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the first through seventh and tenth causes of action, and denied plaintiff’s cross motion for summary judgment.

To the extent plaintiff contends that defendant was not entitled to summary judgment dismissing the first through seventh and tenth causes of action, for the reasons stated in ACH Chiropractic, P.C., as Assignee of Ferril, Gabriel J. v Nationwide Ins. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2019-1357 K C], decided herewith), plaintiff’s contentions lack merit.

With respect to plaintiff’s argument that it was entitled to summary judgment upon the eighth and ninth causes of action, the affidavit submitted by plaintiff’s owner was insufficient to give rise to a presumption that those claim forms had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, the branches of plaintiff’s cross motion seeking summary judgment on the eighth and ninth causes of action were properly denied.

Accordingly, the the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 5, 2022