ABSOLUTE MEDICAL SUPPLIES INC v. UNITRIN ADVANTAGE INSURANCE COMPANY (2023)

Supreme Court, Appellate Term, New York,

ABSOLUTE MEDICAL SUPPLIES, INC., as Assignee of Huffman, Latanya, Appellant, v. UNITRIN ADVANTAGE INSURANCE COMPANY, Respondent.

2023-149 K C

Decided: September 22, 2023

PRESENT: WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Gullo & Associates, LLC (Cristina Carollo of counsel), for respondent.

ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied, as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's claim was submitted more than 45 days after the subject service had been rendered, and denied plaintiff's cross-motion for summary judgment.

While defendant made a prima facie showing that plaintiff did not timely submit the claim at issue, the affidavit submitted by plaintiff in opposition to defendant's motion was sufficient to raise a triable issue of fact as to that issue (see Longevity Med. Supply, Inc. v MVAIC, 71 Misc 3d 137[A], 2021 NY Slip Op 50440[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). In light of the foregoing, defendant's motion for summary judgment dismissing the complaint should have been denied and plaintiff's cross-motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

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