Opinion
No. 2014–1305 K C.
09-27-2016
ARTZEL, INC., as Assignee of TAMIKA KENDRICK, Respondent, v. MERCURY CASUALTY COMPANY, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered April 9, 2014. The order, insofar as appealed from, upon renewal, adhered to a prior determination made in an order of the same court entered July 10, 2013 denying defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order entered April 9, 2014, insofar as appealed from, is reversed, with $30 costs, and, upon renewal, defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for leave to renew its prior motion for summary judgment dismissing the complaint, which was based upon defendant's non-receipt of the subject bill. Upon renewal, the Civil Court adhered to its prior determination made in an order entered July 10, 2013 denying the motion, finding that there was a triable issue of fact as to whether the bill had been received by defendant.
The proof submitted by defendant in support of its motion was sufficient to demonstrate that defendant had not received the claim form at issue in this action. In the absence of evidence of plaintiff's submission of the claim form at issue, defendant was entitled to summary judgment dismissing the complaint (see Meridian Acupuncture Care, P.C. v. Mercury Cas. Co., 47 Misc.3d 143[A], 2015 N.Y. Slip Op 50681[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v. Interboro Ins. Co., 36 Misc.3d 135[A], 2012 N.Y. Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Fiveborough Chiropractic & Acupuncture, PLLC v. American Employers' Ins. Co., Div. of Onebeacon Am. Ins. Co., 24 Misc.3d 133[A], 2009 N.Y. Slip Op 51395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009] ).
Accordingly, the order, insofar as appealed from, is reversed, and, upon renewal, defendant's motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.