July 5, 2013

Bright Med. Supply Co. v Tri State Consumer Ins. Co. (2013 NY Slip Op 51122(U))

Headnote

The court considered the fact that the defendant, Tri State Consumer Ins. Co., had moved for summary judgment dismissing the complaint brought by Bright Medical Supply Co. as the assignee of Roshel Pakanayev, alleging that it had never received the claim at issue. The main issue decided was whether the plaintiff's opposition to the motion was sufficient to demonstrate proof of proper mailing of the claim form, which would give rise to a presumption of receipt. The court held that the affidavit of defendant's claims representative established that the defendant had never received the claim in question from the plaintiff, and that not only was the plaintiff's opposition to the defendant's motion insufficient to demonstrate proof of proper mailing of the claim form, but the defendant also demonstrated that the address to which the plaintiff had allegedly mailed the claim, a post office box in Philadelphia, was not the defendant's address. Therefore, the court reversed the previous order and granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Bright Med. Supply Co. v Tri State Consumer Ins. Co. (2013 NY Slip Op 51122(U))

Bright Med. Supply Co. v Tri State Consumer Ins. Co. (2013 NY Slip Op 51122(U)) [*1]

Bright Med. Supply Co. v Tri State Consumer Ins. Co.

2013 NY Slip Op 51122(U) [40 Misc 3d 130(A)]

Decided on July 5, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-2144 K C.

Bright Medical Supply Co. as Assignee of ROSHEL PAKANAYEV, Respondent, —
against
Tri State Consumer Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered May 27, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that it had never received the claim at issue. The Civil Court denied defendant’s motion.

The affidavit of defendant’s claims representative established that defendant had never received the claim in question from plaintiff. Not only was plaintiff’s opposition to defendant’s motion insufficient to demonstrate proof of proper mailing of the claim form, which would give rise to a presumption of receipt, but defendant demonstrated that the address to which plaintiff had allegedly mailed the claim, a post office box in Philadelphia, is not defendant’s address.

Accordingly, the order is reversed and defendant’s motion for summary judgment [*2]dismissing the complaint is granted (see Vista Surgical Supplies Inc. v Allstate Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52520[U] [App Term, 2d & 11th Jud Dists 2006]).

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 05, 2013