Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 4, 2013. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first and the third through sixth causes of action, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action, and held that the sole issue for trial was the mailing of the claim forms underlying the fourth through sixth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action are denied; as so modified, the order, insofar as appealed from, 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. Insofar as is relevant to this appeal, by order entered February 4, 2013, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first and the third through sixth causes of action, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action, and held that the sole issue for trial was the mailing of the claim forms underlying the fourth through sixth causes of action.

The affidavit by defendant’s claims representative was sufficient to establish that defendant did not receive the claim forms underlying plaintiff’s fourth through sixth 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 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, 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, contrary to plaintiff’s contention, plaintiff is not entitled to summary judgment on its fourth through sixth causes of action.

With respect to the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first and third causes of action, defendant failed to submit proof by [*2]someone with personal knowledge of the nonappearance of plaintiff’s assignor for the examination under oath which was to occur on March 23, 2011. As a result, defendant is not entitled to summary judgment dismissing plaintiff’s first and third causes of action (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Contrary to plaintiff’s contention, the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action were properly denied, as plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013], affd 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were 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, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action are denied.

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