Compas Med., P.C. v American Tr. Ins. Co.

[*1] Compas Med., P.C. v American Tr. Ins. Co. 2015 NY Slip Op 51240(U) Decided on August 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-789 Q C

Compas Medical, P.C. as Assignee of JULISSA FERNANDEZ, Appellant,

against

American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered March 4, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is 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 appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

As to plaintiff's second cause of action, the affidavit by plaintiff's billing manager was sufficient to demonstrate that the claim had been mailed to defendant in accordance with plaintiff's standard office practice and procedure (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, the affidavit by defendant's no-fault examiner was sufficient to raise a triable issue of fact as to whether defendant had ever received that claim. Thus, there is an issue of fact as to whether defendant's time to pay or deny this claim ever began to run (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

As to the remaining causes of action, defendant's cross motion was sufficient to make a prima facie showing that plaintiff had failed to respond to defendant's initial and follow-up requests for verification as to the claims upon which these causes of action were based. However, as plaintiff argues on appeal, plaintiff's opposition was sufficient to raise a triable issue of fact as to whether plaintiff had responded to those verification requests. Therefore, neither party is entitled to summary judgment on these causes of action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.

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

Decision Date: August 06, 2015