Exultant Med. Diagnostics, P.C. v. American Commerce Ins. Co.

Exultant Medical Diagnostics, P.C., as Assignee of Devon Crawford and Shatara Griffin, Respondent, against American Commerce Insurance Company, Appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant. Baker Sanders, LLC, for respondent (no brief filed). Appeal from an order of the District Court of Nassau County, First District (Ignatius L. Muscarella, J.), dated April 17, 2015. The order denied defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, without costs. In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant's motion for summary judgment dismissing the complaint. Upon a review of the record, we find that defendant failed to establish that the denial of claim forms, which denied plaintiff's claims on the ground of lack of medical necessity, had been properly and timely mailed. The affidavit of defendant's claims adjuster did not state how defendant obtains the mailing address for the denial of claim forms, so as to ensure that the address is correct, or that the envelopes are affixed with postage (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050 [2015]; St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Contemporary Acupuncture, P.C. v Allstate Ins. Co., 51 Misc 3d 132[A], 2016 NY Slip Op 50464[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Consequently, defendant failed to establish its prima facie entitlement to summary judgment. Accordingly, the order is affirmed. Marano, P.J., Iannacci and Garguilo, JJ., concur. Decision Date: April 13, 2017