|Lenox Hill Radiology v Great N. Ins. Co.|
|2016 NY Slip Op 50206(U) [50 Misc 3d 142(A)]|
|Decided on February 22, 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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from an order of the District Court of Suffolk County, Second District (Carl J. Copertino, J.), dated February 25, 2014. 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, without 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 District Court as denied defendant's motion for summary judgment dismissing the complaint. While defendant made a prima facie showing that it had not received plaintiff's claim form, the affidavit of the mailing supervisor in plaintiff's attorneys' offices established that the claim at issue had been mailed to defendant. Thus, a triable issue of fact exists as to the submission of the claim form (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[U], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; 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 Dept, 2d, 11th & 13th Jud Dists 2013]). Moreover, contrary to defendant's contention, even if plaintiff failed to submit the claim form in a timely manner, untimely submission, in and of itself does not entitle defendant to summary judgment dismissing the complaint (see e.g. SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). In light of the foregoing, the order, insofar as appealed from, is affirmed.
Iannacci, J.P., Tolbert and Connolly, JJ., concur.