Ranbow Supply of N.Y., Inc. v NY Cent. Mut. Fire Ins. Co.

[*1] Ranbow Supply of N.Y., Inc. v NY Cent. Mut. Fire Ins. Co. 2009 NY Slip Op 51083(U) [23 Misc 3d 143(A)] Decided on May 28, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 28, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-881 K C.

Ranbow Supply of NY, Inc. a/a/o JURI DENEV, Appellant,

against

NY Central Mutual Fire Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered March 25, 2008. The order granted defendant's motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant's motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion. The Civil Court granted defendant's motion and the instant appeal by plaintiff ensued.

A review of the record indicates that the affidavit of defendant's claims representative failed to demonstrate defendant's prima facie entitlement to summary judgment dismissing the complaint due to a lack of medical necessity. Defendant's supporting affidavit stated that defendant did not receive the claims at issue prior to the commencement of the action while, at the same time, stating that it received the claims on specified dates prior to the commencement of the action and thereafter timely denied same. In view of the foregoing inconsistency, defendant's motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: May 28, 2009