BAB Nuclear Radiology, P.C. v. Mercury Cas. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 11, 2016
• Docket: 2016 NYSlipOp 50318(U)
• Status: Published

Opinion

BAB Nuclear Radiology, P.C. as Assignee of Madeline Herth, Respondent,

against

Mercury Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered August 8, 2013. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely denied the claim at issue based on plaintiff's failure to submit it to defendant within 45 days of the date the services had been rendered. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant's motion for summary judgment, finding that the affidavit of plaintiff's billing supervisor was sufficient to demonstrate the existence of a triable issue of fact with respect to whether the claim had been timely submitted to defendant.

Contrary to defendant's sole contention on appeal, the affidavit of plaintiff's billing supervisor was sufficient to demonstrate the existence of a triable issue of fact with respect to whether the claim had been timely submitted to defendant. Consequently, defendant did not prove, as a matter of law, that plaintiff had failed to comply with the regulation requiring submission of claims within 45 days of the services rendered (see 11 NYCRR 65-1.1).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: March 11, 2016