Quality Health Supply Corp. v Progressive Ins. Co.

[*1] Quality Health Supply Corp. v Progressive Ins. Co. 2021 NY Slip Op 51028(U) Decided on October 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2020-773 K C

Quality Health Supply Corp., as Assignee of Robert, Joseph, Appellant,

against

Progressive Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. McCormack, Mattei & Holler (Jamila Shukry of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered March 14, 2019. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,176.95.

In this action by a provider to recover the principal sum of $1,176.95 in assigned first-party no-fault benefits for durable medical products it sold to its assignor in June 2015, a nonjury trial was held. At the trial, a "Trial Stipulation" was admitted into evidence which stated that both sides had "established their respective prima facie burdens" and "[t]he only remaining issues to be resolved at trial are those defenses which are preserved in defendant's timely denials and any non-waivable defenses." Plaintiff rested its case after the stipulation was admitted into evidence.

In support of defendant's affirmative defense that plaintiff was not properly licensed at the time it sold the durable medical equipment to its assignor, defendant's witness, its senior litigation representative, testified that she had made a Freedom of Information Law (FOIL) request in order to find out whether plaintiff had a Department of Consumer Affairs license during the time period of January 2010 to June 2016. The representative testified that she had received a response that "No records were found for Quality Health Supply Corp. Inc." Certified copies of the FOIL request and response were admitted into evidence at trial.

Following the trial, the Civil Court found that plaintiff was not entitled to recover no-fault benefits because it was not licensed at the time the products were sold to the assignor, and dismissed the complaint. A judgment was subsequently entered on March 14, 2019.

Upon a review of the record, we find that the testimony of defendant's senior litigation representative, as well as the certified FOIL documents entered into evidence at trial, were insufficient to establish that plaintiff did not have a Department of Consumer Affairs license for the time period of January 2010 to June 2016 (cf. Bath Med. Supply, Inc. v Allstate Indem. Co., 27 Misc 3d 92 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]). The FOIL evidence solely established that a company named "Quality Heath Supply Corp. Inc." was not licensed during this time period and no evidence was provided that plaintiff "Quality Health Supply Corp." is the same entity as "Quality Health Supply Corp. Inc." As there was no other evidence to establish that plaintiff was not properly licensed at the time it sold the durable medical products to its assignor, plaintiff should have been awarded a judgment in its favor.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,176.95.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 22, 2021