May 14, 2013

Jian Kang, Inc. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50851(U))

Headnote

The court considered a case in which a provider sought to recover assigned first-party no-fault benefits from an insurance company. The insurance company denied the provider's claims, alleging that there was a "material misrepresentation" because the provider had billed for a heating pad that had not been provided to the assignor. The main issue decided was whether the provider was barred from receiving benefits not only for the heating pad but also for the remaining supplies for which they sought to recover. The holding of the court was that the insurance company failed to establish that the claim forms sought payment for medical supplies that were not actually provided, and that billing for a heating pad that was not delivered did not void the insurance policy. Therefore, the court affirmed the denial of the insurance company's motion to dismiss the claims for the remaining supplies.

Reported in New York Official Reports at Jian Kang, Inc. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50851(U))

Jian Kang, Inc. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50851(U)) [*1]

Jian Kang, Inc. v New York Cent. Mut. Fire Ins. Co.

2013 NY Slip Op 50851(U) [39 Misc 3d 146(A)]

Decided on May 14, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2013

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

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2011-1857 Q C.

Jian Kang, Inc. as Assignee of CHARLENE PRESCOTT, Respondent,
against
New York Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered April 20, 2011. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the total sum of $3,988.58.

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 denied plaintiff’s claims on the ground of “material misrepresentation” because plaintiff had billed for a heating pad which defendant had determined had not been provided to plaintiff’s assignor. Defendant moved for summary judgment dismissing the complaint, contending that, since one of plaintiff’s claim forms billed for an electric heating pad which had not been provided to plaintiff’s assignor, plaintiff was barred, as a result of this material misrepresentation, from receiving no-fault benefits for the electric heating pad as well as for the remaining supplies for which plaintiff sought to recover. Plaintiff opposed the motion. The Civil Court, by order entered April 20, 2011, granted defendant’s motion to the extent of dismissing so much of the [*2]complaint as sought to recover for the heating pad, on the ground that it had not been delivered to plaintiff’s assignor, but denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for the remaining supplies billed for, which amounted to $3,988.58. Defendant appeals from so much of the order as denied those branches of its motion.

Defendant failed to establish as a matter of law that the claim forms which are the subject of this appeal sought payment of assigned first-party no-fault benefits for medical supplies that had not actually been provided by plaintiff to its assignor. Defendant also failed to establish that the provider’s billing for a heating pad which had never been delivered to plaintiff’s assignor voided the automobile insurance policy underlying this action from the policy’s inception and that, therefore, defendant need not pay for any of the other medical supplies which may have been furnished to plaintiff’s assignor under this policy.

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

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013