Longevity Med. Supply, Inc. v MVAIC

[*1] Longevity Med. Supply, Inc. v MVAIC 2021 NY Slip Op 50440(U) Decided on May 14, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-451 K C

Longevity Medical Supply, Inc., as Assignee of Alexis, Evens, Appellant,

against

MVAIC, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Jeffrey Kadushin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered February 5, 2019. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is modified by denying the branch of defendant's motion seeking summary judgment dismissing the second through fifth causes of action; 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 granting a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint and denying plaintiff's cross motion for summary judgment.

With respect to the branch of defendant's motion seeking summary judgment dismissing the second through fifth causes of action, the affidavit of defendant's claims representative established that defendant had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim forms denying the claims set forth within those causes of action on the ground that they had been submitted more than 45 days after those services had been rendered (see 11 NYCRR 65-2.4 [c]). The denial of claim forms further advised plaintiff that late notice would be excused if reasonable justification for plaintiff's failure to give timely notice was provided (see id.). As defendant established its prima facie entitlement to judgment as a matter of law upon those causes of action (see TAM Med. Supply Corp. v [*2]Fiduciary Ins. Co. of Am., 53 Misc 3d 129[A], 2016 NY Slip Op 51352[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the burden shifted to plaintiff to demonstrate a triable issue of fact. The affidavit submitted by plaintiff in opposition to defendant's motion was sufficient to give rise to a presumption that those claim forms had been timely mailed to defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff timely submitted the claims which are the subject of the second through fifth causes of action.

With respect to the first cause of action, contrary to plaintiff's sole argument to defeat that branch of defendant's motion, defendant was not required to annex to its motion papers copies of the medical records which were reviewed by defendant's peer reviewer (see Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50149[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). As to the sixth cause of action, plaintiff's contention that the affidavit it submitted was sufficient to raise a triable issue of fact lacks merit.

Accordingly, the order is modified by denying the branch of defendant's motion seeking summary judgment dismissing the second through fifth causes of action.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021