Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51631(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 6, 2013. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment on the second, third, eighth and ninth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. A judgment was entered on March 13, 2013, pursuant to the February 6, 2013 order, awarding plaintiff the principal lump sum of $1,255.70 upon the second, third, and fifth through ninth causes of action. The appeal from the order is deemed to be from so much of the judgment as was in favor of plaintiff on the second, third, eighth and ninth causes of action (see CPLR 5501 [c]).

ORDERED that the judgment, insofar as appealed from, is modified by vacating so much thereof as was in favor of plaintiff on the third, eighth and ninth causes of action, as well as so much of the order entered February 6, 2013 as granted the branches of plaintiff’s motion seeking summary judgment upon those causes of action, those branches of plaintiff’s motion are denied, and the matter is remitted to the Civil Court for the entry of a new judgment in favor of plaintiff upon the second and fifth through seventh causes of action, and for all further proceedings; as so modified, the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered February 6, 2013, the Civil Court granted the branches of plaintiff’s motion seeking summary judgment upon the second, third, and fifth through ninth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. As limited by its brief, defendant appeals from so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the second, third, eighth and ninth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. A judgment was entered on March 13, 2013, pursuant to the February 6, 2013 order, awarding plaintiff the principal lump sum of $1,255.70 upon the second, third, and fifth through ninth causes of action. The appeal from the order is deemed to be from so much of the judgment as was in favor of plaintiff on the second, third, eighth and ninth causes of action (see CPLR 5501 [c]).

The affidavit by defendant’s claims representative was sufficient to establish that [*2]defendant did not receive the claim forms underlying plaintiff’s third, eighth and ninth causes of action. However, since the affidavit from plaintiff’s owner demonstrated that the claim forms had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny these claims 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, 11th & 13th Jud Dists 2015]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As a result, plaintiff is not entitled to summary judgment on its third, eighth and ninth causes of action.

Upon receiving the claim underlying the second cause of action, defendant sent letters notifying plaintiff that defendant was delaying payment thereon, but the letters did not request any specific verification. Consequently, contrary to defendant’s contention, these delay letters did not toll the statutory time period within which defendant was required to pay or deny the claim underlying the second cause of action (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists [2010]). As the first letter that defendant sent to schedule plaintiff’s assignor’s examination under oath was sent more than 30 days after defendant had received the claim underlying the second cause of action, the 30-day period within which defendant was required to pay or deny this claim had already expired.

Accordingly, the judgment, insofar as appealed from, is modified by vacating so much thereof as was in favor of plaintiff on the third, eighth and ninth causes of action, as well as so much of the order entered February 6, 2013 as granted the branches of plaintiff’s motion seeking summary judgment upon those causes of action, those branches of plaintiff’s motion are denied, and the matter is remitted to the Civil Court for the entry of a new judgment in favor of plaintiff upon the second and fifth through seventh causes of action, and for all further proceedings.

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