September 19, 2016

Alleviation Med. Servs., P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51347(U))

Headnote

The court considered an appeal from an order of the Civil Court that denied a provider's motion for summary judgment and granted the insurance company's cross motion for summary judgment to dismiss the complaint. The main issue was whether the insurance company received the claim at issue and whether their time to pay or deny the claim began to run. The court held that there was an issue of fact as to whether the insurance company's time to pay or deny the claim ever began to run, as the affidavit from the provider's owner demonstrated that the claim form had been mailed to the insurance company. Therefore, neither party was entitled to summary judgment, and the court modified the order to deny the insurance company's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Alleviation Med. Servs., P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51347(U))

Alleviation Med. Servs., P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51347(U)) [*1]

Alleviation Med. Servs., P.C. v 21st Century Ins. Co.

2016 NY Slip Op 51347(U) [53 Misc 3d 128(A)]

Decided on September 19, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2223 Q C

Alleviation Medical Services, P.C., as Assignee of DIONISIA RODRIGUEZ, Appellant,
against
21st Century Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 10, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

The affidavit by defendant’s claims representative was sufficient to establish that defendant did not receive the claim at issue. However, since the affidavit from plaintiff’s owner demonstrated that the claim form had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny this claim ever began to run (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, neither defendant nor plaintiff is entitled to summary judgment.

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 19, 2016