June 2, 2017

Performance Plus Med., P.C. v MVAIC (2017 NY Slip Op 50761(U))

Headnote

MVAIC's payment log and claims representative's affidavit supported dismissal based on exhaustion of the applicable no-fault benefits. The Civil Court denied the provider's motion for summary judgment and granted MVAIC's cross motion dismissing the assigned-benefits complaint for lack of coverage due to exhausted limits. On appeal, the provider challenged the evidence supporting the cross motion. The Appellate Term, Second Department, concluded that the payment log was properly considered and that the representative's affidavit sufficiently established when MVAIC received the claims listed in the log. It affirmed the order in favor of MVAIC.

Reported in New York Official Reports at Performance Plus Med., P.C. v MVAIC (2017 NY Slip Op 50761(U))

[*1]
Performance Plus Med., P.C. v MVAIC
2017 NY Slip Op 50761(U)
Decided on June 2, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
NO.2014-2013 Q C

Performance Plus Medical, P.C., as Assignee of St. Leger, Alvarest, Appellant,

against

MVAIC, Respondent.


The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Marshall & Marshall (Barbara Carabell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 23, 2014. 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 affirmed, with $25 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. The court found that defendant had demonstrated that there was a lack of coverage due to the exhaustion of the limits of the applicable no-fault benefits.

Contrary to plaintiff’s contention, defendant’s payment log was properly considered by the court, and the affidavit from defendant’s claims representative sufficiently established the dates the claims set forth in the payment log had been received by defendant. Consequently, plaintiff’s argument with respect to defendant’s cross motion for summary judgment lacks merit.

Accordingly, the order is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.


Decision Date: June 02, 2017

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