March 28, 2025

Integral Med. Supply Corp. v Progressive Ins. Co. (2025 NY Slip Op 50493(U))

Headnote

In this case, the court considered the facts surrounding a provider's attempt to recover assigned first-party no-fault benefits after the defendant, Progressive Insurance Co., moved for summary judgment on the grounds that the plaintiff's assignor had materially misrepresented where the insured vehicle was garaged. The main issues involved whether the defendant had timely denied the claims based on these misrepresentations, which could affect its ability to assert this defense in court. The court determined that the defendant's failure to establish timely denial of the claims meant that it could not rely on the misrepresentation defense, ultimately leading to a reversal of the lower court's order and a denial of the defendant's motion for summary judgment. The decision underscored the importance of timely denial in asserting defenses related to misrepresentation.

Reported in New York Official Reports at Integral Med. Supply Corp. v Progressive Ins. Co. (2025 NY Slip Op 50493(U))

[*1]

Integral Med. Supply Corp. v Progressive Ins. Co.

2025 NY Slip Op 50493(U)

Decided on March 28, 2025

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This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2025

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

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-508 RI C

Integral Medical Supply Corp., as Assignee of Boubacar Sissoko, Appellant,

against

Progressive Insurance Co., Respondent.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. McCormack, Mattei & Holler, P.C. (Jamila Shukry of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, Jr., J.), dated May 16, 2024. 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 (Robert J. Helbock, Jr., J.) dated May 16, 2024 granting defendant’s motion for summary judgment dismissing the complaint.

Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had materially misrepresented where the vehicle was garaged. As this defense is subject to preclusion (see JFL Med. Care, P.C. v Wesco Ins. Co., 77 Misc 3d 139[A], 2022 NY Slip Op 51376[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Empire State Med. Supplies, Inc. v Sentry Ins., 55 Misc 3d 130[A], 2017 NY Slip Op 50403[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), defendant was required to establish that it had timely denied the claims on that ground, but it failed to do so (see JFL Med. Care, P.C., 2022 NY Slip Op 51376[U]; Empire State Med. Supplies, Inc., 2017 NY Slip Op 50403[U]; Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant’s motion should have been denied. In view of the foregoing, we reach no other issue.

Accordingly, the order is reversed and defendant’s motion for summary judgment [*2]dismissing the complaint is denied.

TOUSSAINT, P.J. and MUNDY, J., concur.

OTTLEY, J., taking no part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 28, 2025