Greenway Med. Supply Corp. v ELRAC, Inc.

[*1] Greenway Med. Supply Corp. v ELRAC, Inc. 2016 NY Slip Op 51774(U) Decided on December 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2014-2054 Q C

Greenway Medical Supply Corp., as Assignee of Sauveur Prosper, Appellant,

against

ELRAC, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 29, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 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 granted defendant's motion for summary judgment dismissing the complaint. The ground for the motion was that defendant had timely and properly denied the claim based upon the late submission of a claim form (see 11 NYCRR 65—2.4 [c]).

Contrary to plaintiff's argument on appeal, the affidavit submitted by defendant demonstrated that defendant had received the claim form at issue on December 6, 2010, more than five months after the supplies at issue had been provided. Furthermore, while plaintiff argues on appeal that its employee's affidavit, which was submitted in opposition to plaintiff's motion, was sufficient to establish that plaintiff had mailed its claim form within 45 days of the provision of the supplies, the affidavit has no probative value. The claim form was dated July 1, 2010 and the affidavit states, allegedly based upon the affiant's personal knowledge, that the claim form was mailed on June 23, 2010.

Plaintiff's final argument on appeal is similarly without merit (see 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]).

Accordingly, the order is affirmed.

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

Decision Date: December 07, 2016