April 19, 2016

Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50649(U))

Headnote

The relevant facts the court considered were that plaintiff, Great Health Care Chiropractic, P.C., was suing defendant, Unitrin Direct Insurance Company, as the assignee of Junior Noel to recover first-party no-fault benefits. The main issue decided was whether defendant's motion for summary judgment dismissing the complaint should be granted on the ground that defendant never received the claim at issue. The holding of the court was that there was a triable issue of fact as to whether the claim at issue was timely submitted to defendant, and thus, the order was reversed and defendant's motion for summary judgment dismissing the complaint was denied.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50649(U))

Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50649(U)) [*1]

Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co.

2016 NY Slip Op 50649(U) [51 Misc 3d 141(A)]

Decided on April 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1697 Q C

Great Health Care Chiropractic, P.C. as Assignee of JUNIOR NOEL, Appellant,
against
Unitrin Direct Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 9, 2013. The order granted 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 denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had never received the claim at issue.

Although the affidavit of defendant’s claims examiner established prima facie that defendant had not received the claim at issue, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the claim form had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether the claim at issue was timely submitted to defendant.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decision Date: April 19, 2016