February 22, 2016

Lenox Hill Radiology v Great N. Ins. Co. (2016 NY Slip Op 50206(U))

Headnote

The relevant facts the court considered in this case were that Lenox Hill Radiology and Mia, P.C. (doing business as Regency Medical Imaging) sought to recover assigned first-party no-fault benefits from Great Northern Insurance Company. Great Northern Insurance Company appealed an order of the District Court that denied its motion for summary judgment dismissing the complaint. The main issue decided was whether there was a triable issue of fact as to the submission of the claim form, as defendant claimed it had not received the form, while the affidavit of the mailing supervisor in plaintiff's attorneys' offices established that the claim at issue had been mailed to defendant. The holding of the case was that the Appellate Term affirmed the order, without costs, as there was a triable issue of fact as to the submission of the claim form, and untimely submission in and of itself does not entitle defendant to summary judgment dismissing the complaint.

Reported in New York Official Reports at Lenox Hill Radiology v Great N. Ins. Co. (2016 NY Slip Op 50206(U))

Lenox Hill Radiology v Great N. Ins. Co. (2016 NY Slip Op 50206(U)) [*1]

Lenox Hill Radiology v Great N. Ins. Co.

2016 NY Slip Op 50206(U) [50 Misc 3d 142(A)]

Decided on February 22, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., TOLBERT and CONNOLLY, JJ.
2014-1937 S C

Lenox Hill Radiology and Mia, P.C., Doing Business as REGENCY MEDICAL IMAGING, as Assignee of PEGGY PETTITT, Respondent,
against
Great Northern Insurance Company, Doing Business as CHUBB GROUP OF INSURANCE COMPANIES, Appellant.

Appeal from an order of the District Court of Suffolk County, Second District (Carl J. Copertino, J.), dated February 25, 2014. 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, without 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 District Court as denied defendant’s motion for summary judgment dismissing the complaint. While defendant made a prima facie showing that it had not received plaintiff’s claim form, the affidavit of the mailing supervisor in plaintiff’s attorneys’ offices established that the claim at issue had been mailed to defendant. Thus, a triable issue of fact exists as to the submission of the claim form (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[U], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 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 Dept, 2d, 11th & 13th Jud Dists 2015]; 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 Dept, 2d, 11th & 13th Jud Dists 2013]). Moreover, contrary to defendant’s contention, even if plaintiff failed to submit the claim form in a timely manner, untimely submission, in and of itself does not entitle defendant to summary judgment dismissing the complaint (see e.g. SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). In light of the foregoing, the order, insofar as appealed from, is affirmed.

Iannacci, J.P., Tolbert and Connolly, JJ., concur.

Decision Date: February 22, 2016