Milky Way Acupuncture, P.C. v Nationwide Ins. (2019 NY Slip Op 51968(U))

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered February 13, 2018. The order, insofar as appealed from, upon renewal, adhered to the determination in a prior order of that court entered January 17, 2017 granting defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered February 13, 2018, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider, commenced in 2015, to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to submit the bills at issue to defendant. By order entered January 17, 2017, the Civil Court granted the motion, noting, among other things, that the bills had been addressed to “MVAIC” (Motor Vehicle Accident Indemnification Corporation), not defendant. Plaintiff moved, insofar as is relevant, for leave to renew its opposition to defendant’s motion and, upon renewal, for an order denying defendant’s motion. Plaintiff supported its motion with a new affidavit by its owner, who stated that the bills at issue had been “resubmitted to insurance carrier” on June 7, 2010. Defendant opposed the motion. Plaintiff appeals from so much of an order of the Civil Court entered February 13, 2018, as, upon renewal, adhered to its prior [*2]determination granting defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s arguments, the affidavit of defendant’s litigation claims specialist established that defendant had not received the claims at issue (see Alleviation Med. Servs., P.C. v 21st Century Ins. Co., 53 Misc 3d 128[A], 2016 NY Slip Op 51347[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Compas Med., P.C. v Farm Family Cas. Ins. Co., 49 Misc 3d 148[A], 2015 NY Slip Op 51704[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and the affidavit submitted in support of plaintiff’s motion for leave to renew failed to demonstrate that the claim forms had been mailed to defendant, as plaintiff’s owner merely stated that the “documents were resubmitted to insurance carrier” without establishing the identity of the carrier to whom plaintiff had resubmitted the claim forms.

Plaintiff’s remaining arguments lack merit.

Accordingly, the order entered February 13, 2018, insofar as appealed from, is affirmed.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.