Active Care Med. Supply Corp. v. Farmington Cas. Co.

Appellate Terms of the Supreme Court of New York

Active Care Med. Supply Corp. v. Farmington Cas. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 14, 2019

Docket2019 NYSlipOp 50987(U)

StatusPublished

This text of Active Care Med. Supply Corp. v. Farmington Cas. Co. (Active Care Med. Supply Corp. v. Farmington Cas. Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Active Care Med. Supply Corp. v. Farmington Cas. Co., (N.Y. Ct. App. 2019).

Pincite

Opinion

Active Care Medical Supply Corp., as Assignee of Gauthier, Brian, Appellant,

against

Farmington Casualty Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Gregory W. Broido of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered April 14, 2016. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by vacating so much thereof as granted the branches of defendant's motion seeking summary judgment dismissing the first and fourth causes of action; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination of those branches of defendant's motion in accordance with this decision and order.

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.

Contrary to plaintiff's contention, the record demonstrates that defendant did not receive the verification requested with respect to the second and third causes of action and, thus, those causes of action were properly dismissed as premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50925[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Indeed, defendant annexed letters from plaintiff in which plaintiff acknowledged defendant's requests for wholesale invoices for the equipment furnished by [*2]plaintiff and plaintiff's letters further stated that plaintiff was not providing such invoices to defendant. In opposition, plaintiff failed to raise a triable issue of fact.

The branches of defendant's motion seeking summary judgment dismissing the first and fourth causes of action on the ground of lack of medical necessity did not assert, let alone establish, that those causes of action were premature. Thus, the Civil Court improperly dismissed those causes of action on that ground. Consequently, so much of the order as granted the branches of defendant's motion seeking summary judgment dismissing the first and fourth causes of action must be vacated and the matter remitted to the Civil Court for a new determination of those branches of defendant's motion.

Accordingly, the order is modified by vacating so much thereof as granted the branches of defendant's motion seeking summary judgment dismissing the first and fourth causes of action and the matter is remitted to the Civil Court for a new determination of those branches of defendant's motion in accordance with this decision and order.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 14, 2019

Free access — add to your briefcase to read the full text and ask questions with AI