Compas Med., P.C. v Hartford Ins. Co.

[*1] Compas Med., P.C. v Hartford Ins. Co. 2015 NY Slip Op 50784(U) Decided on May 18, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-72 Q C

Compas Medical, P.C. as Assignee of VENETTE PIERRE LOUIS, Appellant,

against

Hartford Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d'Auguste, J.), entered December 4, 2012. The order, insofar as appealed from, denied plaintiff's motion for summary judgment and granted the branches of defendant's cross motion seeking summary judgment dismissing the 1st through 3rd and 5th through 10th causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of plaintiff's motion seeking summary judgment on the 4th, 5th and 10th causes of action are granted, and the branches of defendant's cross motion seeking summary judgment dismissing the 5th and 10th causes of action are denied; as so modified, the order is affirmed, without costs.

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 court denied plaintiff's motion for summary judgment and, insofar as is relevant to this appeal, granted the branches of defendant's motion seeking summary judgment dismissing the first through third and fifth through tenth causes of action. With respect to the claim underlying the fourth cause of action, which defendant alleged it had never received, the court found that issues of fact exist.

With respect to the claims underlying the first through third and sixth through ninth causes of action, contrary to plaintiff's argument on appeal, the affidavits submitted by defendant were sufficient to demonstrate that the denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, with respect to the claims underlying the 5th and 10th causes of action, plaintiff correctly argues that defendant's denial of claim forms were not timely mailed. Accordingly, the branches of defendant's cross motion seeking summary judgment dismissing those causes of action should have been denied.

Plaintiff is entitled to summary judgment on the 4th, 5th and 10th causes of action. Plaintiff's moving papers established, prima facie, the submission to defendant of the claim forms underlying those causes of action (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), and that defendant had not paid the claims. With respect to the claim underlying the fourth cause of action, defendant's conclusory allegation that it had not received the bill failed to rebut the presumption of receipt (cf. Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]). Since defendant admitted that it did not timely deny the claim underlying the 4th cause of action, and the record demonstrates that the claims underlying the 5th and 10th causes of action were not timely denied, the branches of plaintiff's motion seeking summary judgment on those causes of action should have been granted (see Viviane Etienne Med. Care, P.C. v [*2]Country-Wide Ins. Co., 114 AD3d 33 [2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branches of plaintiff's motion seeking summary judgment on the 4th, 5th and 10th causes of action are granted and the branches of defendant's cross motion seeking summary judgment dismissing the 5th and 10th causes of action are denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: May 18, 2015