Opinion
2019-836 K C
05-14-2021
FIRST AMERICAN ALLIANCE, INC., as Assignee of Sylvia Jupiter, Appellant, v. MVAIC, Respondent.
Gary Tsirelman, P.C. (Jung Pryjma of counsel), for appellant. Marshall & Marshall, PLLC ( Frank D'Esposito of counsel), for respondent.
Gary Tsirelman, P.C. (Jung Pryjma of counsel), for appellant.
Marshall & Marshall, PLLC ( Frank D'Esposito of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ.
ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint on the ground of lack of medical necessity.
Contrary to MVAIC's contention, the 30-day period within which MVAIC may timely deny a claim or request verification begins to run upon receipt of the claim without regard to whether MVAIC has determined that plaintiff's assignor is a covered person within the meaning of Insurance Law § 5221 (b) (2) ( see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. , 12 AD3d 429 [2004] ; Active Care Med. Supply Corp. v MVAIC , 66 Misc 3d 128[A], 2019 NY Slip Op 52045[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As a result, MVAIC's motion seeking summary judgment dismissing the complaint should have been denied as MVAIC failed to establish that it is not precluded from interposing its defense of lack of medical necessity ( see Active Care Med. Supply Corp. v MVAIC , 66 Misc 3d 128[A], 2019 NY Slip Op 52045[U] ).
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.