Opinion
2018-1355 K C
11-06-2020
WAVE MEDICAL SERVICES, P.C., as Assignee of Marceus, Josue, Respondent-Appellant, v. METLIFE AUTO & HOME, Appellant-Respondent.
Bruno, Gerbino, Soriano & Aitken, LLP (Nathan M. Shapiro, Esq.), for appellant-respondent. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent-appellant.
Bruno, Gerbino, Soriano & Aitken, LLP (Nathan M. Shapiro, Esq.), for appellant-respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent-appellant.
PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
ORDERED that the cross appeal is dismissed as abandoned; and it is further,
ORDERED that the order, insofar as reviewed, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.
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 claims at issue.
The affidavit of defendant's claims representative established that defendant had never received the claims in question from plaintiff. Defendant demonstrated that plaintiff mailed the claims at issue to an address in Latham, New York; that defendant had not received mail at that address for almost 28 months, as defendant's mailing address was either in North Carolina or Pennsylvania; that the Latham address had not been defendant's physical address for almost two years; and that a United State Post Office mail forwarding order, which had been in effect for 12 months after defendant physically moved from that location, had expired more than nine months before plaintiff mailed the subject claims. In opposition to defendant's motion, the affidavit submitted by plaintiff's billing clerk merely established that he had mailed the claims to the Latham, New York address and thus, it was insufficient to demonstrate proof of proper mailing of the claim forms, which would give rise to a presumption of receipt. Consequently, defendant's time to pay or deny plaintiff's claims never began to run and defendant is entitled to summary judgment dismissing the complaint without prejudice, as it is premature (see Insurance Law § 5106 [a] ; 11 NYCRR 65-3.8 [c]; 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]; see also Abruscato v. Allstate Prop. & Cas. Ins. Co. , 165 AD3d 1209, 1210 [2018] ; cf. Parisien v. Travelers Ins. Co. , 65 Misc 3d 154[A], 2019 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] ).
Accordingly, the order, insofar as reviewed, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.