Alleviation Med. Servs., P.C. v. 21st Century Ins. Co.

Full title: ALLEVIATION MEDICAL SERVICES, P.C., as Assignee of Dionisia Rodriguez…

Court: Supreme Court, Appellate Term, Second Department, 2, 11th and 13th Judicial Dist.

Date published: Sep 19, 2016

46 N.Y.S.3d 473 (2d Cir. 2016)

Opinion

No. 2013–2223 Q C.

09-19-2016

ALLEVIATION MEDICAL SERVICES, P.C., as Assignee of Dionisia Rodriguez, Appellant, v. 21ST CENTURY INSURANCE COMPANY, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 10, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

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

The affidavit by defendant's claims representative was sufficient to establish that defendant did not receive the claim at issue. However, since the affidavit from plaintiff's owner demonstrated that the claim form had been mailed to defendant, there is an issue of fact as to whether defendant's time to pay or deny this claim ever began to run (see Compas Med., P.C. v. 21st Century Ins. Co., 47 Misc.3d 128[A], 2015 N.Y. Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ). Consequently, neither defendant nor plaintiff is entitled to summary judgment.

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.