Bento Ortho, Inc. v. Victoria Ins. Group

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group , P.C. (Nathan Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered December 20, 2016. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

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 NY 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.