September 8, 2017

Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51142(U))

Headnote

The court considered the denial of Compas Medical, P.C.'s motion for summary judgment and the granting of American Transit Ins. Co.'s cross motion for summary judgment, which sought to dismiss the first cause of action in a lawsuit involving the recovery of first-party no-fault benefits. The main issue decided was whether the defendant had fully paid the plaintiff for the claim underlying the first cause of action in accordance with the workers' compensation fee schedule, and whether the plaintiff had established its prima facie entitlement to summary judgment. The holding of the court was that the branch of the defendant's cross motion seeking summary judgment dismissing the first cause of action should have been denied, and that the plaintiff had failed to establish its entitlement to summary judgment. Therefore, the order was modified to deny the branch of the defendant's cross motion seeking summary judgment dismissing the first cause of action.

Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51142(U))

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

Compas Medical, P.C., as Assignee of Caton, Korina, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 12, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action.

Plaintiff correctly argues that defendant did not demonstrate, as a matter of law, that it had fully paid plaintiff for the claim underlying the first cause of action in accordance with the [*2]workers’ compensation fee schedule. Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action should have been denied. However, plaintiff failed to establish its prima facie entitlement to summary judgment, since the proof submitted by plaintiff failed to establish that the claims 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 timely denial of claim forms that were 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 modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is denied.

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

Paul Kenny
Chief Clerk
Decision Date: September 08, 2017