Queens Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co.

[*1] Queens Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. 2013 NY Slip Op 51996(U) Decided on November 26, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-284 K C.

Queens Medical Supply, Inc. as Assignee of LANCE MACK, Respondent,

against

IDS Property & Casualty Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered September 23, 2010, deemed from a judgment of the same court entered April 9, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 23, 2010 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,877.85.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court granted plaintiff's motion and denied defendant's cross motion. On appeal, defendant argues that plaintiff failed to demonstrate its prima facie entitlement to summary judgment and that its own cross motion should have been granted.

The billing records submitted by plaintiff do not assert that the supplies at issue had been delivered to plaintiff's assignor. Nor did plaintiff's affiant state that he had delivered the supplies [*2]to plaintiff's assignor. Rather, he stated that it is his general practice to either (1) deliver his supplies directly to the eligible injured person or (2) deliver them to the prescribing healthcare providers for subsequent delivery to the eligible injured person. He did not specify in his affidavit which method of delivery was used in this case. Accordingly, plaintiff's moving papers failed to demonstrate plaintiff's prima facie entitlement to summary judgment, in that they failed to prove the fact and the amount of the loss sustained (see Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 30 Misc 3d 142 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Defendant admits that it received plaintiff's claims in September and October of 2007, and it is undisputed that the claims were not paid or denied within 30 days of their receipt. Defendant has not established that its time to pay or deny the claims had been tolled. Thus, defendant failed to demonstrate that the claims had been timely denied, and, therefore, its cross motion for summary judgment was properly denied (ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013