Infinity Health Prods., Ltd. v Zurich Ins. Co. (2008 NY Slip Op 51869(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Diane A. Lebedeff, J.), entered August 27, 2007. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Order reversed without costs, defendant’s motion for summary judgment dismissing the complaint granted and plaintiff’s cross motion for summary judgment denied.

Plaintiff commenced this action to recover $882.39 in assigned first-party no-fault benefits for medical supplies provided to its assignor for injuries he sustained in
a motor vehicle accident on October 12, 2004. Defendant moved for summary judgment dismissing the complaint, arguing that the action was premature since it had yet to receive claims pertaining to such an accident. Plaintiff cross-moved for summary judgment. The court below granted plaintiff’s cross motion and, implicitly, denied defendant’s motion. The instant appeal by defendant ensued.

Upon a review of the record, we find that plaintiff failed to establish its prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the facts and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The affidavit of plaintiff’s billing manager states that plaintiff’s assignor received medical supplies for injuries he sustained in an accident on October 12, 2004, which date corresponds to the facts alleged in the complaint. The annexed claim forms and denials, however, refer to an accident occurring on September 29, 2004. Consequently, plaintiff’s cross motion for summary judgment should have been denied. Defendant, however, established itsprima facie entitlement to summary judgment dismissing the complaint based upon the fact [*2]that it did not receive claims from plaintiff regarding an accident on October 12, 2004 involving plaintiff’s assignor. Inasmuch as plaintiff failed to rebut defendant’s showing, defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 2008