May 25, 2018

FEMA Med. Supply, Inc. v Country-Wide Ins. Co. (2018 NY Slip Op 50782(U))

Headnote

The relevant facts considered by the court were that FEMA Medical Supply, Inc. sought to recover first-party no-fault benefits from Country-Wide Insurance Company. FEMA appealed the denial of their motion for summary judgment. The main issue decided was whether FEMA had established its entitlement to summary judgment by demonstrating that its bills were submitted to the insurer and either not paid or denied within the requisite 30-day period. The holding of the court was that FEMA failed to establish, as a matter of law, that it had mailed its bills to the defendant, and therefore the order denying their motion for summary judgment was affirmed.

Reported in New York Official Reports at FEMA Med. Supply, Inc. v Country-Wide Ins. Co. (2018 NY Slip Op 50782(U))

FEMA Med. Supply, Inc. v Country-Wide Ins. Co. (2018 NY Slip Op 50782(U)) [*1]

FEMA Med. Supply, Inc. v Country-Wide Ins. Co.

2018 NY Slip Op 50782(U) [59 Misc 3d 148(A)]

Decided on May 25, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-710 Q C

FEMA Medical Supply, Inc., as Assignee of Erickson Gil, Jesus Rodrigo-Garcia, Darrell Belton, Colin Noel and Jesus Hernandez-Garcia, Appellant,
against
Country-Wide Insurance Company, Respondent.

Amos Weinberg, for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered September 29, 2015. The order, insofar as appealed from, denied plaintiff’s 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 denied plaintiff’s motion for summary judgment.

A provider establishes its entitlement to summary judgment by demonstrating that its bills were submitted to the insurer and either that they were not paid or denied within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Here, plaintiff failed to establish, as a matter of law, [*2]that it had mailed its bills to defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018