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Civil Court, City of New York.

LONGEVITY MEDICAL SUPPLY, INC., Petitioner, v. MVAIC, Respondent.


Decided: March 11, 2019

Attorney for plaintiff: Oleg Rybak, Esq. The Rybak Firm PLLC 1810 Voorhies Avenue 3rd Floor Suite 7 Brooklyn, New York 11235 Attorney for defendant Barbara Carabell, Esq. Marshall & Marshall 30 Jericho Executive Plaza Jericho, New York 11753

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

Papers Numbered

Notice of Motion, Affirmation in Support and Exhibits 1

Notice of Cross Motion, Affirmation in Opposition and Exhibits 2

Reply Affirmation in Opposition 3

In an action for breach of contract seeking damages, defendant moves pursuant to CPLR 3211(a)(1) and 3212(b) for an order granting summary judgment in its favor and for an order dismissing the complaint on the ground of plaintiff's untimely submission of the bills more than 45 days from the date of service. Defendant further contends it timely denied the bills at issue.

Plaintiff cross moves for an order, pursuant to CPLR 3212(b), granting it summary judgement and dismissing defendant's affirmative defense, or, pursuant to CPLR 3212(g) limiting the issues of fact for trial and finding that billing forms were mailed and received by the carrier and that payment of no-fault benefits were overdue.

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law by advancing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact. (See, Zuckerman v. City of New York, 49 NY2d 557 [1980]). In considering a motion for summary judgement, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. (See, Negri v. Stop & Shop, Inc., 65 NY2d 625 [1985]).

Summary judgment is inappropriate where there are material issues of fact in dispute or where more than one conclusion may be drawn from the facts. (See, Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039 [2016]). It is well settled that the proponent of a summary judgment motion must make a prima facie case showing entitlement to judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of any material issues of fact. (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. (Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Pursuant to 11 NYCRR 65-1.1, “[i]n the case of a claim for health service expenses, the eligible injured person or that person's assignee or representative shall submit written proof of claim to the Company, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered”. Id. A denial based on a failure to submit the claim form within 45 days of the date of service, must advise plaintiff that late submission of the proofs of claim will be excused if plaintiff can provide a reasonable justification for the late submission. (Park v. Zurich Am. Ins. Co., 33 Misc 3d 127(A) [App Term 2nd Dept 2011]); 11 NYCRR 65-3.3 (e). This absolute defense may be waived. (See, Matter of State Farm Ins. Co. v. Domotor, 266 AD2d 219 [2nd Dept 1999]).

Defendant has submitted an affidavit from its claims representative, which based on her knowledge of office procedure, states that the date of service of the various bills, dated March 11, 2016, June 17, 2016, and October 12, 2016, were mailed, almost a year late, by plaintiff on March 2, 2017. Defendant further contends that plaintiff offered no reasonable justification for the late submission of the bills, and that defendant it denied the bills as untimely within the statutory 30 day-period.

The court finds that defendant's submissions in support satisfy the prima facie showing establishing the alleged bills were untimely as required by law, thus shifting to plaintiff the obligation to show by evidentiary proof the existence of a triable issue of material fact.

Initially, a movant has the burden to set forth evidentiary facts sufficient to entitle that party to judgment as a matter of law, whereupon the burden is shifted to the opposing party to come forward with proof, again in evidentiary form, to show the existence of genuine triable issues of fact. (See, Piccolo v. De Carlo, 90 AD2d 609 [3rd Dept 1982]).

Plaintiff contends that there are triable issues of fact regarding whether defendant established its prima facie case and also contends that the evidence submitted in support of its summary judgment motion is insufficient.

In support plaintiff, submits the affidavit of Eugene Nemets, the owner of Longevity Medical Supply, Inc., which states that based on his personal knowledge of the mailing procedures, as well as having personally reviewed the patient file and supervised the operations, office functions and related procedures of the management of medical records the claims were submitted timely on March 11, 2016. In addition, the plaintiff annexed copies of claims dated March 11, 2016, which affiant contends to have personally generated said claim form, NF-3, pertaining to this matter. The court further notes that defendant did not provide in support of its motion the envelopes containing the bills at issue sent by plaintiff, which could have bore the date of its mailing via post office stamp or explain the reason for its failure to submit the envelopes.

Based on the conflicting supporting evidence, this court finds there exists triable issues of fact sufficient to preclude summary judgment.

 Plaintiff's Summary Judgment motion

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a timely claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant either failed to pay or deny the claim within the requisite 30-day period or issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. (See, New York & Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512 [2nd Dept 2006]).

The Court also denies plaintiff's cross motion for summary judgment. The Court finds that plaintiff did not submit evidence in admissible form to prove the mailing of the claim forms, inasmuch as plaintiff failed to provide proof of mailing. (See, Midborough Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132(A)). The Court also finds that plaintiff did not prove that defendant did not deny the claim within the required 30-day period or that the denial was conclusory, vague, or without merit as a matter of law. Therefore, plaintiff's cross motion is further denied.


Accordingly, defendant's motion and plaintiff's cross motion are hereby denied.

This constitutes the Decision and Order of the Court.

Odessa Kennedy, J.

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Docket No: CV-718401/17

Decided: March 11, 2019

Court: Civil Court, City of New York.

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