Opinion
2016-1356 K C
06-14-2019
ACTIVE CARE MEDICAL SUPPLY CORP., as Assignee of Gauthier, Brian, Appellant, v. FARMINGTON CASUALTY COMPANY, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Gregory W. Broido of counsel), for respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.
Law Office of Aloy O. Ibuzor (Gregory W. Broido of counsel), for respondent.
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
ORDERED that the order is modified by vacating so much thereof as granted the branches of defendant's motion seeking summary judgment dismissing the first and fourth causes of action; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination of those branches of defendant's motion in accordance with this decision and order.
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 defendant's motion for summary judgment dismissing the complaint.
Contrary to plaintiff's contention, the record demonstrates that defendant did not receive the verification requested with respect to the second and third causes of action and, thus, those causes of action were properly dismissed as premature (see Central Suffolk Hosp. v. New York Cent. Mut. Fire Ins. Co. , 24 AD3d 492 [2005] ; New Way Med. Supply Corp. v. State Farm Mut. Auto. Ins. Co. , 56 Misc 3d 132[A], 2017 NY Slip Op 50925[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ). Indeed, defendant annexed letters from plaintiff in which plaintiff acknowledged defendant's requests for wholesale invoices for the equipment furnished by plaintiff and plaintiff's letters further stated that plaintiff was not providing such invoices to defendant. In opposition, plaintiff failed to raise a triable issue of fact.
The branches of defendant's motion seeking summary judgment dismissing the first and fourth causes of action on the ground of lack of medical necessity did not assert, let alone establish, that those causes of action were premature. Thus, the Civil Court improperly dismissed those causes of action on that ground. Consequently, so much of the order as granted the branches of defendant's motion seeking summary judgment dismissing the first and fourth causes of action must be vacated and the matter remitted to the Civil Court for a new determination of those branches of defendant's motion.
Accordingly, the order is modified by vacating so much thereof as granted the branches of defendant's motion seeking summary judgment dismissing the first and fourth causes of action and the matter is remitted to the Civil Court for a new determination of those branches of defendant's motion in accordance with this decision and order.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.