October 11, 2019

Bento Ortho, Inc. v Victoria Ins. Group (2019 NY Slip Op 51613(U))

Headnote

The court considered the fact that the plaintiff, Bento Ortho, Inc., was seeking to recover assigned first-party no-fault benefits. The main issue decided was whether the defendant's motion for summary judgment dismissing the complaint should be granted, and whether the plaintiff's cross motion for summary judgment should be denied. The court held that there was an issue of fact as to whether the plaintiff's claims were timely denied, due to a significant discrepancy between the date the bills were sent and the date they were received by the defendant. As a result, the court modified the order by denying the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Bento Ortho, Inc. v Victoria Ins. Group (2019 NY Slip Op 51613(U))

Bento Ortho, Inc. v Victoria Ins. Group (2019 NY Slip Op 51613(U)) [*1]

Bento Ortho, Inc. v Victoria Ins. Group

2019 NY Slip Op 51613(U) [65 Misc 3d 133(A)]

Decided on October 11, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-946 K C

Bento Ortho, Inc., as Assignee of Reaves, Althea, Appellant,
against
Victoria Insurance Group, Respondent.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered December 20, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath, and denied plaintiff’s cross motion for summary judgment.

We find that there is an issue of fact as to whether plaintiff’s claims were timely denied, as there is a significant discrepancy between the date the bills were sent, as claimed by plaintiff, and the date the bills were received, as claimed by defendant (see Complete Radiology, P.C. v Progressive Ins. Co., 37 Misc 3d 133[A], 2012 NY Slip Op 52079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019