November 21, 2014

Easy Care Acupuncture PC v MVAIC (2014 NY Slip Op 51645(U))

Headnote

A provider sued MVAIC for assigned first-party no-fault benefits, and the Civil Court granted MVAIC summary judgment dismissing the complaint and denied the provider's cross motion to compel discovery. MVAIC relied on its claim representative's assertion that it was not aware of the provider's bills before the action began, to show untimely submission beyond the 45-day limit. The Appellate Term found the assertion vague and conclusory, noting the representative did not state that the assignor's file was searched to see whether the bills had been received. MVAIC therefore failed to meet its initial burden. The order was modified to deny MVAIC's motion, reinstate the complaint and direct MVAIC to answer three interrogatories.

Reported in New York Official Reports at Easy Care Acupuncture PC v MVAIC (2014 NY Slip Op 51645(U))

[*1]
Easy Care Acupuncture PC v MVAIC
2014 NY Slip Op 51645(U) [45 Misc 3d 131(A)]
Decided on November 21, 2014
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, Schoenfeld, Ling-Cohan, JJ.
570078/14

Easy Care Acupuncture PC, a/a/o Ieisha Dingle, Plaintiff-Appellant, –

against

MVAIC, Defendant-Respondent.


Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered October 9, 2013, which granted defendant’s motion for summary judgment dismissing the complaint, and denied plaintiff’s cross motion to compel discovery.

Per Curiam.

Order (Frank P. Nervo, J.), entered October 9, 2013, modified, defendant’s motion denied, complaint reinstated, and plaintiff’s cross motion granted to the extent of directing defendant to respond to interrogatories numbered 2, 7 and 12; as modified, order affirmed, without costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. The vague and conclusory assertion by defendant MVAIC’s claim representative that defendant “was not aware of plaintiff’s bills” prior to the commencement of the action was insufficient, on this record, to make a prima facie showing that plaintiff’s claims were untimely submitted beyond the applicable 45-day time limit (see 11 NYCRR 65-1.1[d]; cf. NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [2007]). Conspicuously absent from the claim’s representative’s moving affidavit was any indication that she or a colleague searched the assignor’s file — said to be under the affiant’s “custody and control” — to ascertain whether plaintiff’s bills and claims had been logged in by defendant as received. Without any such showing, the basis of defendant’s professed, preaction unawareness of plaintiff’s claims is not made clear. Given defendant’s failure to meet its initial burden of demonstrating entitlement to judgment as a matter of law, summary dismissal of the complaint was properly denied irrespective of the sufficiency of plaintiff’s opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant is directed to answer the interrogatories specified above, which are materially relevant to the unresolved issue of defendant’s receipt of the underlying


claims.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur


Decision Date: November 21, 2014