New York Ctr. for Specialty Surgery v. Infinity Ins. Co.

2025 NY Slip Op 51832(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 7, 2025
• Docket: 2024-1137 K C
• Status: Unpublished

Opinion

New York Ctr. for Specialty Surgery v Infinity Ins. Co. (2025 NY Slip Op 51832(U)) [*1]

New York Ctr. for Specialty Surgery v Infinity Ins. Co.

2025 NY Slip Op 51832(U)

Decided on November 7, 2025

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 7, 2025

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : LISA S. OTTLEY, J.P., WAVNY TOUSSAINT, MARINA CORA MUNDY, JJ
2024-1137 K C

New York Center for Specialty Surgery, as Assignee of Sawyers Franklin, Respondent,

against

Infinity Insurance Company, Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Law Offices of Christopher McCollum (Christopher McCollum of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated June 28, 2024. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant's motion which had sought summary judgment dismissing the complaint on the ground that defendant did not receive the subject claims.

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 appeals from so much of an order of the Civil Court (Sandra E. Roper, J.) dated June 28, 2024 as denied the branch of defendant's motion which had sought summary judgment dismissing the complaint on the ground that defendant had not received the subject claims.

The affidavit submitted by defendant's litigation specialist was insufficient to establish, prima facie, that defendant had not received the subject claims, as it failed to establish defendant's practices and procedures for receiving and processing incoming mail (see Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also Bright Med. Supply Co. v Nationwide Ins. Co. of Am., 58 Misc 3d 126[A], 2017 NY Slip Op 51700[U] [App Term, 1st Dept 2017]; SMB Med. P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50719[U] [App Term, 1st Dept 2015]; cf. Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]; Rockland Family Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 76 Misc 3d 126[A], 2022 NY Slip Op 50766[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 7, 2025