October 5, 2016

Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co. (2016 NY Slip Op 51443(U))

Headnote

The court considered the denial of defendant's motion for summary judgment dismissing a complaint brought by a provider to recover assigned first-party no-fault benefits. The main issues decided were whether the defendant demonstrated its entitlement to summary judgment dismissing the first cause of action, and whether the plaintiff's attempt to recover upon the claims underlying the remaining two causes of action was premature due to outstanding verification. The holding of the case was that the order denying defendant's motion for summary judgment was affirmed, with the court finding that the defendant had not demonstrated its entitlement to summary judgment dismissing the first cause of action, and that the defendant had not established as a matter of law that verification requests had been mailed, and thus was not entitled to summary judgment dismissing the second and third causes of action.

Reported in New York Official Reports at Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co. (2016 NY Slip Op 51443(U))

Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co. (2016 NY Slip Op 51443(U)) [*1]

Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co.

2016 NY Slip Op 51443(U) [53 Misc 3d 136(A)]

Decided on October 5, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-954 K C

Daily Medical Equipment Distribution Center, Inc., as Assignee of JEAN JEAN-PIERRE, Respondent,
against
Auto One Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 11, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

For the reasons stated in High Quality Med. Supplies, Inc., as Assignee of Charles Botwee v Mercury Ins. Group (— Misc 3d —, 2016 NY Slip Op — [appeal No. 2014-1081 K C], decided herewith), defendant has not demonstrated its entitlement to summary judgment dismissing the first cause of action.

Defendant sought summary judgment dismissing the remaining two causes of action on the ground that plaintiff’s attempt to recover upon the claims underlying these causes of action is premature because verification is outstanding (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, the affidavits submitted by defendant were insufficient to establish as a matter of law that defendant had mailed verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant has not demonstrated its entitlement to summary judgment dismissing the second and third causes of action.

Accordingly, the order is affirmed.

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

Decision Date: October 05, 2016