SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
May 6, 2013
COMPAS MEDICAL, P.C. AS ASSIGNEE OF MARAVEN MAGNY,
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, APPELLANT.
Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered April 26, 2011, deemed from a judgment of the same court entered May 31, 2011 (see CPLR 5501 [c]).
Compas Med., P.C. v New York Cent. Mut. Fire 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013
PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ
The judgment, entered pursuant to the April 26, 2011 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $4,358.32.
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment. A judgment was subsequently entered, from which defendant's appeal is deemed to have been taken (see CPLR 5501 [c]).
Defendant argues on appeal that plaintiff did not establish its prima facie entitlement to summary judgment because it failed to prove that the claims had been mailed to defendant and it failed to lay a foundation for its claim forms pursuant to CPLR 4518. Contrary to defendant's arguments, plaintiff satisfied both of these prongs of its prima facie case (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 ; Delta Diagnostic Radiology, P.C.
Progressive Cas. Ins. Co., 11 Misc 3d 136[A], 2006 NY Slip Op 50491[U] [App Term, 2d & 11th Jud Dists 2006]).
Furthermore, the affidavit of defendant's claims representative failed to establish that defendant had timely mailed its denial of claim forms (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant failed to establish that it was not precluded from raising most defenses, including its proffered defense that plaintiff's assignor had failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 ), and therefore failed to raise a triable issue of fact.
Accordingly, the judgment is affirmed.
Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: May 06, 2013
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