Artzel, Inc. v Mercury Cas. Co.

[*1] Artzel, Inc. v Mercury Cas. Co. 2016 NY Slip Op 51437(U) Decided on September 27, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1305 K C

Artzel, Inc., as Assignee of TAMIKA KENDRICK, Respondent,

against

Mercury Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered April 9, 2014. The order, insofar as appealed from, upon renewal, adhered to a prior determination made in an order of the same court entered July 10, 2013 denying defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order entered April 9, 2014, insofar as appealed from, is reversed, with $30 costs, and, upon renewal, defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for leave to renew its prior motion for summary judgment dismissing the complaint, which was based upon defendant's non-receipt of the subject bill. Upon renewal, the Civil Court adhered to its prior determination made in an order entered July 10, 2013 denying the motion, finding that there was a triable issue of fact as to whether the bill had been received by defendant.

The proof submitted by defendant in support of its motion was sufficient to demonstrate that defendant had not received the claim form at issue in this action. In the absence of evidence of plaintiff's submission of the claim form at issue, defendant was entitled to summary judgment dismissing the complaint (see Meridian Acupuncture Care, P.C. v Mercury Cas. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50681[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v. Interboro Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Fiveborough Chiropractic & Acupuncture, PLLC v American Employers' Ins. Co., Div. of Onebeacon Am. Ins. Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is reversed, and, upon renewal, defendant's motion for summary judgment dismissing the complaint is granted.

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

Decision Date: September 27, 2016