Opinion
2019-511 K C
05-14-2021
ALLAY MEDICAL SERVICES, P.C., as Assignee of Betances, Jhonny, Respondent, v. NATIONAL LIABILITY & FIRE INSURANCE COMPANY, Appellant.
Mintzer, Sarowitz, Zeris, Ledva and Meyers, LLP (Kate M. Cifarelli of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Mintzer, Sarowitz, Zeris, Ledva and Meyers, LLP (Kate M. Cifarelli of counsel), for appellant.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
ORDERED that the order, insofar as appealed from, is affirmed, with $25 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 denied defendant's motion which had sought summary judgment dismissing the complaint on the ground that defendant had never received the claim at issue.
The affidavit of defendant's personal injury protection unit supervisor established prima facie that defendant had never received the claim in question from plaintiff. However, the affidavit of plaintiff's billing clerk, submitted in opposition to defendant's motion, was sufficient to give rise to a presumption that the subject claim form had been mailed to, and received by, defendant (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. , 50 AD3d 1123 [2008] ), raising a triable issue of fact as to whether defendant had received the claim form. Contrary to defendant's argument, it did not demonstrate, as a matter of law, that the address to which plaintiff mailed the claim form was not defendant's address, and, as a result, defendant's motion for summary judgment dismissing the complaint was properly denied (cf. Wave Med. Servs., P.C. v Metlife Auto & Home , 69 Misc 3d 138[A], 2020 NY Slip Op 51321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.