May 3, 2019

Zen Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 50699(U))

Headnote

The court considered a case in which Zen Acupuncture P.C. was appealing the denial of their cross-motion for summary judgment in a dispute with Allstate Insurance Company. The main issue decided was whether the proof submitted by Zen Acupuncture P.C. established that the claim had not been timely denied or that the denial of the claim was conclusory, vague, or without merit as a matter of law. The holding of the Court was that the denial of the cross-motion for summary judgment should be affirmed because the proof submitted failed to establish that the claim had not been timely denied or that the denial of the claim was without merit. Therefore, the order was affirmed and costs of $25 were imposed on the appellant.

Reported in New York Official Reports at Zen Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 50699(U))

Zen Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 50699(U)) [*1]

Zen Acupuncture, P.C. v Allstate Ins. Co.

2019 NY Slip Op 50699(U) [63 Misc 3d 147(A)]

Decided on May 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-914 K C

Zen Acupuncture, P.C., as Assignee of Madera Michelle, Appellant,
against
Allstate Insurance Company, Respondent.

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (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 March 27, 2017. The order, insofar as appealed from, denied plaintiff’s cross motion for summary judgment.

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, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s cross motion for summary judgment.

Plaintiff’s cross 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 order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019