November 13, 2020

VS Sunrise Med., P.C. v Global Liberty Ins. (2020 NY Slip Op 51370(U))

Headnote

The relevant fact considered by the court in this case was whether the defendant had received the claim forms underlying the plaintiff's second and third causes of action. The main issue decided in this case was whether the defendant had received the claim forms at issue. The holding of the court was that the defendant had submitted sufficient proof to demonstrate, prima facie, that it had not received the claim forms, but the affidavit of the plaintiff's billing administrator raised an issue of fact as to whether those claim forms had been mailed to the defendant. Therefore, the court held that there was an issue of fact as to whether the defendant had received the claims at issue, and consequently denied the branches of the plaintiff's motion seeking summary judgment upon the second and third causes of action.

Reported in New York Official Reports at VS Sunrise Med., P.C. v Global Liberty Ins. (2020 NY Slip Op 51370(U))

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

VS Sunrise Medical, P.C., as Assignee of Valerie Santiago, Respondent,
against
Global Liberty Insurance, Appellant.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Law Offices of Marina Josovich, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered October 9, 2018. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment upon the second and third causes of action, and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the second and third causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as granted the branches of plaintiff’s motion seeking summary judgment upon the second and third causes of action, and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

Defendant correctly argues that it submitted sufficient proof to demonstrate, prima facie, that it had not received the claim forms underlying plaintiff’s second and third causes of action. However, the affidavit of plaintiff’s billing administrator was sufficient to raise an issue of fact as to whether those claim forms had been mailed to defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, there is an issue of fact as to whether defendant had received the claims at issue (see Parisien v Travelers Ins. Co., 65 Misc 3d [*2]154[A], 2019 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the second and third causes of action are denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020