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Queens Medical Supply, Inc. v. IDS Property & Casualty Insurance Co.

Supreme Court of New York, Second Department

November 26, 2013

Queens Medical Supply, Inc. as Assignee of LANCE MACK, Respondent,
v.
IDS Property & Casualty Insurance Company, Appellant.

PRESENT:: PESCE, P.J., ALIOTTA and SOLOMON, JJ

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered September 23, 2010, deemed from a judgment of the same court entered April 9, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 23, 2010 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3, 877.85.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court granted plaintiff's motion and denied defendant's cross motion. On appeal, defendant argues that plaintiff failed to demonstrate its prima facie entitlement to summary judgment and that its own cross motion should have been granted.

The billing records submitted by plaintiff 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. Rather, he stated that it is his general practice to either (1) deliver his supplies directly to the eligible injured person or (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 plaintiff's prima facie entitlement to summary judgment, in that they failed to prove the fact and the amount of the loss sustained (see Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 30 Misc.3d 142 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Defendant admits that it received plaintiff's claims in September and October of 2007, and it is undisputed that the claims were not paid or denied within 30 days of their receipt. Defendant has not established that its time to pay or deny the claims had been tolled. Thus, defendant failed to demonstrate that the claims had been timely denied, and, therefore, its cross motion for summary judgment was properly denied (ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc.3d 135 [A], 2011 NY Slip Op 52384[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.


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