May 14, 2021

Allay Med. Servs., P.C. v National Liab. & Fire Ins. Co. (2021 NY Slip Op 50442(U))

Headnote

The court considered whether the defendant had received the claim at issue in an action by a provider to recover assigned first-party no-fault benefits. The main issue decided was whether the defendant had received the claim form, as the affidavit of defendant's personal injury protection unit supervisor established that defendant had never received the claim in question from the plaintiff. However, the affidavit of plaintiff's billing clerk, submitted in opposition to the defendant's motion, was sufficient to give rise to a presumption that the claim form had been mailed to and received by defendant, raising a triable issue of fact. The holding of the case was that the defendant did not demonstrate, as a matter of law, that the address to which the plaintiff mailed the claim form was not the defendant's address, and as a result, the defendant's motion for summary judgment dismissing the complaint was properly denied. Therefore, the order was affirmed.

Reported in New York Official Reports at Allay Med. Servs., P.C. v National Liab. & Fire Ins. Co. (2021 NY Slip Op 50442(U))

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

Allay Medical Services, P.C., as Assignee of Betances, Jhonny, Respondent,
against
National Liability & Fire Insurance Company, Appellant.

Mintzer, Sarowitz, Zeris, Ledva and Meyers, LLP (Kate M. Cifarelli of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 25, 2019. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

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, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that defendant had never received the claim at issue.

The affidavit of defendant’s personal injury protection unit supervisor established prima facie that defendant had never received the claim in question from plaintiff. However, the affidavit of plaintiff’s billing clerk, submitted in opposition to defendant’s motion, was sufficient to give rise to a presumption that the subject claim form had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), raising a triable issue of fact as to whether defendant had received the claim form. Contrary to defendant’s argument, it did not demonstrate, as a matter of law, that the address to which plaintiff mailed the claim form was not defendant’s address, and, as a result, defendant’s motion for summary judgment dismissing the complaint was properly denied (cf. Wave Med. Servs., P.C. v Metlife Auto & Home, 69 Misc 3d 138[A], 2020 NY Slip Op 51321[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021