September 22, 2023

Absolute Med. Supplies, Inc. v Unitrin Advantage Ins. Co. (2023 NY Slip Op 51237(U))

Headnote

The main issue in the case was whether the plaintiff, Absolute Medical Supplies, Inc., had submitted their claim for first-party no-fault benefits in a timely manner. The defendant, Unitrin Advantage Insurance Company, argued that the claim was submitted more than 45 days after the service was rendered, and therefore should be dismissed. The court considered the timing of the claim submission and whether there was a triable issue of fact. The holding of the case was that while the defendant had initially made a prima facie showing that the claim was not timely, the plaintiff's opposition raised a triable issue of fact. As a result, the court denied the defendant's motion for summary judgment dismissing the complaint and affirmed the order with modification.

Reported in New York Official Reports at Absolute Med. Supplies, Inc. v Unitrin Advantage Ins. Co. (2023 NY Slip Op 51237(U))

[*1]

Absolute Med. Supplies, Inc. v Unitrin Advantage Ins. Co.

2023 NY Slip Op 51237(U) [81 Misc 3d 128(A)]

Decided on September 22, 2023

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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2023

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

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-149 K C

Absolute Medical Supplies, Inc., as Assignee of Huffman, Latanya, Appellant,

against

Unitrin Advantage Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Gullo & Associates, LLC (Cristina Carollo of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), dated September 20, 2022. 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 claim was submitted more than 45 days after the subject service had been rendered, and denied plaintiff’s cross-motion for summary judgment.

While defendant made a prima facie showing that plaintiff did not timely submit the claim at issue, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to raise a triable issue of fact as to that issue (see Longevity Med. Supply, Inc. v MVAIC, 71 Misc 3d 137[A], 2021 NY Slip Op 50440[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). In light of the foregoing, defendant’s motion for summary judgment dismissing the complaint should have been denied and plaintiff’s cross-motion for summary judgment was properly denied.

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

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2023