Fair Price Med. Supply Corp. v ELRAC Inc.

[*1] Fair Price Med. Supply Corp. v ELRAC Inc. 2006 NY Slip Op 51437(U) [12 Misc 3d 144(A)] Decided on July 18, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 18, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2005-1156 K C. NO.2005-1156 K C

FAIR PRICE MEDICAL SUPPLY CORP., AAO SHAMI PENNANT, Appellant,

against

ELRAC INC. & ENTERPRISE RENT-A-CAR, Respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered June 6, 2005. The order denied plaintiff's motion for summary judgment and granted defendants' cross motion to compel discovery.

Appeal from so much of the order as granted defendants' cross motion to compel discovery dismissed.

Order, insofar as it denied plaintiff's motion for summary judgment, affirmed without costs. [*2]

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor. Plaintiff moved for summary judgment and defendants cross-moved to compel plaintiff to produce outstanding discovery and to appear for an examination before trial, or to strike plaintiff's complaint and dismiss the action for plaintiff's failure to provide discovery. By order entered June 6, 2005, the court below denied plaintiff's motion and granted defendants' cross motion to compel discovery. Since plaintiff failed to submit written opposition to defendants' cross motion to compel discovery, that branch of the order which granted defendants' cross motion was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; see also Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendants' cross motion to compel discovery is dismissed.

In an action to recover first-party no-fault benefits for medical supplies furnished to its assignor, a provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see[*3]Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). While the affidavit submitted by plaintiff was insufficient to establish the mailing of the appended claim forms to defendants, said deficiency, as in this case, may be cured by a defendant's acknowledgment of receipt on its denial of claim form (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Thus, plaintiff established a prima facie case entitling it to summary judgment and the burden shifted to defendants to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff's motion, defendants submitted documentary evidence which raised a triable issue of fact as to whether partial payment of the claim of $680.85 was made by defendants. In addition, defendants also asserted that "there was a fraudulent scheme in the happening of the accident," a defense which survives preclusion (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that defendants' papers sufficiently demonstrate defendants' "founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident" (Central Gen. [*4]
Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Consequently, plaintiff's motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 18, 2006