BENTO ORTHO INC v. VICTORIA INSURANCE GROUP (2019)

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 assignor had failed to appear for duly scheduled examinations under oath, and denied plaintiff's cross motion for summary judgment.

We find that there is an issue of fact as to whether plaintiff's claims were timely denied, as there is a significant discrepancy between the date the bills were sent, as claimed by plaintiff, and the date the bills were received, as claimed by defendant (see Complete Radiology, P.C. v. Progressive Ins. Co., 37 Misc. 3d 133[A], 2012 N.Y. Slip Op. 52079[U] [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2012] ).

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

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.