Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered May 18, 2009.
Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 28, 2011
PRESENT: RIOS, J.P., PESCE and GOLIA, JJ
The order, insofar as appealed from, denied plaintiff's motion for summary judgment.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action, a provider seeks to recover assigned first-party no-fault benefits for supplies it allegedly delivered to its assignor. Insofar as is relevant to this appeal, the Civil Court denied plaintiff's motion for summary judgment, on the ground that there was a triable issue of fact.
In response to plaintiff's appeal, defendant argues, as it did in the Civil Court, that the affidavit submitted by plaintiff's "sole shareholder, corporate officer and employee" in support of plaintiff's motion for summary judgment failed to make out a prima facie case. We agree, and affirm the order appealed from on that ground.
The billing records submitted by plaintiff in support of its motion for summary judgment do not assert that the supplies at issue had been delivered to plaintiff's assignor. Nor did plaintiff's affiant state that he had delivered the supplies to plaintiff's assignor. Indeed, he stated that it is his general practice to either (1) deliver his supplies directly to the eligible injured person or to (2) deliver them to the prescribing healthcare providers for subsequent delivery to the eligible injured person. He did not specify in his affidavit which method of delivery was used in this case. Accordingly, plaintiff's moving papers failed to demonstrate its prima facie entitlement to summary judgment.
We note that the holding in Fair Price Med. Supply Corp. v Travelers Indem. Co. (10 NY3d 556 ) does not impact our decision in this case because, in that case, the issue of whether the plaintiff had made out a prima facie case was not dealt with by either the Appellate Division (42 AD3d 277 ) or the Court of Appeals (10 NY3d 556). The Court of Appeals held that a defense that the billed-for services or supplies were never provided is precluded if the insurer fails to timely deny the claim, and both courts limited their discussions to the preclusion issue. Here, we are asked to consider whether plaintiff's moving papers made out a prima facie case in the first instance so as to even shift the burden to defendant to raise a non-precluded defense (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ), and we conclude that they did not.
Accordingly, plaintiff's motion for summary judgment was properly denied, albeit on a different ground than that ...