March 18, 2016

Greenway Med. Supply Corp. v Dollar Rent A Car (2016 NY Slip Op 50392(U))

https://www.beynensonlaw.com/case-law/greenway-med-supply-corp-v-dollar-rent-a-car-2016-ny-slip-op-50392u/

Court: Appellate Term, Second Department
Decided: March 18, 2016
Citation: 2016 NY Slip Op 50392(U) · 51 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case Discovery and procedure

Cite as

Greenway Med. Supply Corp. v Dollar Rent A Car, 51 Misc 3d 130(A), 2016 NY Slip Op 50392(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer established nonreceipt of the claims, and the provider's mailing log showed they were sent to a different insurer. The insurer's no-fault representative supplied prima facie proof that the claim forms were not received. Although the provider described its mailing practices, its affidavit identified the recipient only as the insurance carrier and supplied no other proof of mailing to this defendant. The provider therefore failed to raise a triable issue. The absence of a certificate of conformity for the insurer's out-of-state affidavit was curable or could be disregarded under CPLR 2001. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.

Reported in New York Official Reports at Greenway Med. Supply Corp. v Dollar Rent A Car (2016 NY Slip Op 50392(U))

[*1]

Greenway Med. Supply Corp. v Dollar Rent A Car

2016 NY Slip Op 50392(U) [51 Misc 3d 130(A)]

Decided on March 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 18, 2016

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

PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ.
2014-2126 K C

Greenway Medical Supply Corp., as Assignee of IAN MORENO, Respondent,

against

Dollar Rent A Car, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 25, 2014. 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 appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit by its no-fault claim representative which was sufficient to establish, prima facie, that defendant had not received the claim forms at issue. Moreover, defendant submitted a mailing log, which it had received from plaintiff in discovery, indicating that the claim forms in question had been sent, not to defendant, but to a different insurer. In opposition, plaintiff submitted an affidavit which set forth its mailing practices and procedures, but which stated only that the claim forms had been sent to “the insurance carrier.” Plaintiff provided no other evidence that it had mailed the claim forms to defendant. Under these circumstances, we find that plaintiff failed to raise a triable issue of fact as to whether it had actually mailed the claim forms to defendant (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

We note that the absence of a certificate of conformity is not a fatal defect to the out-of-state affidavit proffered by defendant (see Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Bey v Neuman, 100 AD3d 581 [2012]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), as the defect may be corrected nunc pro tunc or disregarded pursuant to CPLR 2001 (see Midfirst Bank v Agho, 121 AD3d 343 [2014]).

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

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

Decision Date: March 18, 2016

Cited in this decision

Active Chiropractic, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50634(U))An out-of-state affidavit's lack of a certificate of conformity under CPLR 2309 (c) is not a fatal defect.

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