| VS Sunrise Med., P.C. v Global Liberty Ins. |
| 2020 NY Slip Op 51370(U) [69 Misc 3d 143(A)] |
| Decided on November 13, 2020 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Law Offices of Marina Josovich, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered October 9, 2018. The order, insofar as appealed from, granted the branches of plaintiff's motion seeking summary judgment upon the second and third causes of action, and denied the branches of defendant's cross motion seeking summary judgment dismissing those causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of plaintiff's motion seeking summary judgment upon the second and third causes of action are denied; as so modified, 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 Civil Court as granted the branches of plaintiff's motion seeking summary judgment upon the second and third causes of action, and denied the branches of defendant's cross motion seeking summary judgment dismissing those causes of action.
Defendant correctly argues that it submitted sufficient proof to demonstrate, prima facie, that it had not received the claim forms underlying plaintiff's second and third causes of action. However, the affidavit of plaintiff's billing administrator was sufficient to raise an issue of fact as to whether those claim forms had been mailed to defendant (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, there is an issue of fact as to whether defendant had received the claims at issue (see Parisien v Travelers Ins. Co., 65 Misc 3d [*2]154[A], 2019 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [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]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of plaintiff's motion seeking summary judgment upon the second and third causes of action are denied.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.