Opinion
570078/14
02-20-2015
Easy Care Acupuncture PC, a/a/o Ieisha Dingle, Plaintiff-Appellant, v. MVAIC, Defendant-Respondent.
PRESENT: Lowe, III, Schoenfeld, Ling-Cohan, JJ.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered October 9, 2013, which granted defendant's motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion to compel discovery.
Per Curiam.
Order (Frank P. Nervo, J.), entered October 9, 2013, modified, defendant's motion denied, complaint reinstated, and plaintiff's cross motion granted to the extent of directing defendant to respond to interrogatories numbered 2, 7 and 12; as modified, order affirmed, without costs.
The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. The vague and conclusory assertion by defendant MVAIC's claim representative that defendant "was not aware of plaintiff's bills" prior to the commencement of the action was insufficient, on this record, to make a prima facie showing that plaintiff's claims were untimely submitted beyond the applicable 45-day time limit (see 11 NYCRR 65-1.1[d]; cf. NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [2007]). Conspicuously absent from the claim's representative's moving affidavit was any indication that she or a colleague searched the assignor's file — said to be under the affiant's "custody and control" — to ascertain whether plaintiff's bills and claims had been logged in by defendant as received. Without any such showing, the basis of defendant's professed, preaction unawareness of plaintiff's claims is not made clear. Given defendant's failure to meet its initial burden of demonstrating entitlement to judgment as a matter of law, summary dismissal of the complaint was properly denied irrespective of the sufficiency of plaintiff's opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant is directed to answer the interrogatories specified above, which are materially relevant to the unresolved issue of defendant's receipt of the underlying claims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: February 20, 2015