|Compas Med., P.C. v 21st Century Ins. Co.|
|2015 NY Slip Op 50388(U) [47 Misc 3d 128(A)]|
|Decided on March 16, 2015|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 16, 2012. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant's cross motion for summary judgment is denied; 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 which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
Plaintiff's moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 ), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 ). Thus, plaintiff failed to establish its entitlement to summary judgment, and its motion for summary judgment was properly denied.
The affidavit by defendant's claims representative was sufficient to establish that defendant did not receive the claim underlying plaintiff's third cause of action. However, since the affidavit from plaintiff's owner demonstrated that the claim form had been mailed to defendant, there is an issue of fact as to whether defendant's time to pay or deny this claim ever began to run (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Consequently, defendant is not entitled to summary judgment dismissing plaintiff's third cause of action.
In support of the branches of its cross motion seeking summary judgment dismissing plaintiff's remaining causes of action, defendant submitted affidavits from a number of its employees. The affidavits set forth that envelopes containing the underlying NF-10 denial of claim forms were picked up by third-party mailing services to be taken to the post office. However, defendant failed to demonstrate the existence of a standard office practice and procedure utilized by the third-party mailing services so as to given rise to a presumption that the envelopes had been mailed (see Health Needles Acupuncture, P.C. v United Servs. Auto. Assn., 39 Misc 3d 134[A], 2013 NY Slip Op 50537[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ; Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As a result, defendant was not entitled to summary judgment dismissing plaintiff's remaining causes of action.
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.