October 18, 2019

Lida’s Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51691(U))

Headnote

The court considered the fact that Lida's Medical Supply, Inc. filed a motion for summary judgment in order to recover first-party no-fault benefits. The main issue decided was whether the proof submitted by Lida's Medical Supply, Inc. established that the claim had not been timely denied or that the insurer had issued a timely denial of claim form that was without merit as a matter of law. The holding of the court was that Lida's Medical Supply, Inc.'s motion for summary judgment should have been denied, as the proof submitted failed to establish that the claim had not been timely denied, or that the insurer had issued a timely denial of claim form that was without merit as a matter of law. Therefore, the judgment was reversed, and the motion for summary judgment was denied.

Reported in New York Official Reports at Lida’s Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51691(U))

Lida’s Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51691(U)) [*1]

Lida’s Med. Supply, Inc. v Global Liberty Ins.

2019 NY Slip Op 51691(U) [65 Misc 3d 139(A)]

Decided on October 18, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-2381 K C

Lida’s Medical Supply, Inc., as Assignee of Johan Gaston, Respondent,
against
Global Liberty Insurance, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 10, 2017. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment. The notice of appeal from the order is deemed a notice of appeal from a judgment of that court entered December 12, 2017 awarding plaintiff the principal sum of $1,501.92 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 10, 2017 as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. By order entered May 10, 2017, the Civil Court granted plaintiff’s motion. This appeal by defendant ensued. A judgment was subsequently entered on December 12, 2017, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff’s motion for summary judgment should have been denied as the proof submitted by plaintiff failed to establish that the claim had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order entered May 10, 2017 as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019