September 27, 2016

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51423(U))

Headnote

The main issue of the case was to determine whether the defendant was entitled to summary judgment dismissing the complaint brought by the plaintiff, a medical supply corporation seeking to recover assigned first-party no-fault benefits. The court considered the fact that the affidavit submitted by the defendant in support of its cross motion did not establish a standard office practice or procedure for mailing letters scheduling the plaintiff's assignor for independent medical examinations. As a result, the court held that the defendant had not demonstrated its entitlement to summary judgment. However, the court also found that the plaintiff had failed to establish its entitlement to summary judgment, as the affidavit submitted in support of its motion did not prove that the claim at issue had not been timely denied or that the defendant had issued a timely denial of claim. Therefore, the court modified the order by denying the defendant's cross motion for summary judgment dismissing the complaint and affirmed the order, without costs.

Reported in New York Official Reports at TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51423(U))

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51423(U)) [*1]

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co.

2016 NY Slip Op 51423(U) [53 Misc 3d 134(A)]

Decided on September 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-835 Q C

TAM Medical Supply Corp., as Assignee of JOEL JACQUEZ, Appellant,
against
National Liability & Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered March 20, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff correctly argues that the affidavit submitted by defendant in support of its cross motion did not sufficiently set forth a standard office practice or procedure that would ensure that its letters scheduling plaintiff’s assignor for independent medical examinations had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ.

Decision Date: September 27, 2016