Allay Med. Servs., P.C. v National Liab. & Fire Ins. Co.

[*1] Allay Med. Servs., P.C. v National Liab. & Fire Ins. Co. 2021 NY Slip Op 50442(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 This opinion is uncorrected and will not be published in the printed Official Reports.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
2019-511 K C

Allay Medical Services, P.C., as Assignee of Betances, Jhonny, Respondent,

against

National Liability & Fire Insurance Company, Appellant.

Mintzer, Sarowitz, Zeris, Ledva and Meyers, LLP (Kate M. Cifarelli of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 25, 2019. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion which had sought summary judgment dismissing the complaint on the ground that defendant had never received the claim at issue.

The affidavit of defendant's personal injury protection unit supervisor established prima facie that defendant had never received the claim in question from plaintiff. However, the affidavit of plaintiff's billing clerk, submitted in opposition to defendant's motion, was sufficient to give rise to a presumption that the subject claim form had been mailed to, and received by, defendant (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), raising a triable issue of fact as to whether defendant had received the claim form. Contrary to defendant's argument, it did not demonstrate, as a matter of law, that the address to which plaintiff mailed the claim form was not defendant's address, and, as a result, defendant's motion for summary judgment dismissing the complaint was properly denied (cf. Wave Med. Servs., P.C. v Metlife Auto & Home, 69 Misc 3d 138[A], 2020 NY Slip Op 51321[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

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