May 6, 2015

Longevity Med. Supply, Inc. v Allstate Ins. Co. (2015 NY Slip Op 50757(U))

Headnote

The court considered a motion for summary judgment in an action by a medical supply company to recover assigned first-party no-fault benefits from an insurance company. The insurance company had timely mailed requests for additional verification and the main issue for trial was whether the medical supply company had served responses to the verification requests. The court found that the medical supply company failed to establish the absence of a material issue of fact and therefore was not entitled to summary judgment. The court affirmed the order denying the motion for summary judgment, as the medical supply company's remaining contentions were found to lack merit.

Reported in New York Official Reports at Longevity Med. Supply, Inc. v Allstate Ins. Co. (2015 NY Slip Op 50757(U))

Longevity Med. Supply, Inc. v Allstate Ins. Co. (2015 NY Slip Op 50757(U)) [*1]

Longevity Med. Supply, Inc. v Allstate Ins. Co.

2015 NY Slip Op 50757(U) [47 Misc 3d 147(A)]

Decided on May 6, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2015

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

PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2013-2435 K C

Longevity Medical Supply, Inc. as Assignee of ANA CABRAL, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered September 5, 2013. The order, insofar as appealed from and as limited by the brief, denied plaintiff’s motion for summary judgment.

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, plaintiff appeals, as limited by its brief, from so much of an order as denied its motion for summary judgment. The Civil Court determined that defendant had established that it had timely mailed requests for additional verification, and found that the only issue for trial is whether plaintiff had served responses to defendant’s verification requests.

The record shows that the Civil Court considered both defendant’s proof that defendant had not received requested verification from plaintiff and an affidavit from plaintiff which asserts that material responsive to the verification requests had been sent to defendant. Thus, plaintiff failed to establish the absence of a material issue of fact. As a result, the Civil Court properly determined that plaintiff was not entitled to summary judgment. Plaintiff’s remaining contentions lack merit.

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

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

Decision Date: May 06, 2015