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Complete Medical Services of Ny, P.C. As Assignee of Francisca Diaz-Ruiz v. Mvaic

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


October 11, 2011

COMPLETE MEDICAL SERVICES OF NY, P.C. AS ASSIGNEE OF FRANCISCA DIAZ-RUIZ,
RESPONDENT,
v.
MVAIC,
APPELLANT.

Appeals from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered May 18, 2009 and from a judgment of the same court entered June 23, 2009.

Complete Med. Servs. of NY, P.C. v MVAIC

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2011

PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ

The order granted plaintiff's motion for summary judgment. The judgment, entered upon the order, awarded plaintiff the principal sum of $3,062.24.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) opposed plaintiff's motion, arguing, among other things, that plaintiff was not entitled to recover no-fault benefits from MVAIC because plaintiff never established that its assignor was a resident of New York State and, thus, plaintiff had failed to establish its prima facie case. By order entered May 18, 2009, the Civil Court granted plaintiff's motion. A judgment was entered in favor of plaintiff on June 23, 2009. MVAIC appeals from both the order and the judgment.

The appeal from the order is dismissed as the right of direct appeal therefrom terminated with the entry of judgment (see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

Although MVAIC contends that plaintiff's assignor failed to demonstrate that she was a resident of New York State (see Insurance Law § 5202 [b]), the record establishes that defendant received the notarized notice of intention to make claim form, executed by plaintiff's assignor one day after the accident, which form sets forth the New York residence of plaintiff's assignor (see generally Insurance Law § 5221 [b] [2]). In addition, plaintiff's moving papers establish that plaintiff's claim form for the services at issue was mailed to MVAIC (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that the claim was not paid, that MVAIC did not timely deny plaintiff's claim and that the claim form was admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Inc. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). In light of the foregoing, plaintiff made a prima facie showing of its entitlement to summary judgment (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; cf. Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

As MVAIC's remaining contention lacks merit, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.

Decision Date: October 11, 2011

20111011

© 1992-2011 VersusLaw Inc.



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