September 27, 2016

Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co. (2016 NY Slip Op 51410(U))

Headnote

The court considered the denial of claim forms at issue and whether they were timely mailed as well as whether the defendant was entitled to summary judgment in dismissing the complaint. The main issue decided was whether the defendant's motion papers had established that the denial of claim forms had been timely mailed and whether the plaintiff had demonstrated its entitlement to summary judgment. The holding of the case was that the defendant's cross motion for summary judgment dismissing the complaint was denied, as the proof submitted did not establish that the denial of claim had been timely or that the denial of claim was conclusory, vague, or without merit as a matter of law. Therefore, the order was modified to provide that the defendant's cross motion for summary judgment dismissing the complaint was denied.

Reported in New York Official Reports at Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co. (2016 NY Slip Op 51410(U))

Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co. (2016 NY Slip Op 51410(U)) [*1]

Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co.

2016 NY Slip Op 51410(U) [53 Misc 3d 133(A)]

Decided on September 27, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-410 Q C

Daily Medical Equipment Distribution Center, Inc., as Assignee of EDZER LOUIS-JEAN, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered January 28, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff correctly argues that defendant’s motion papers failed to establish that the denial of claim forms at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant failed to establish that it is entitled to summary judgment dismissing the complaint.

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its motion did not establish either that defendant had failed to deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim 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 is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 27, 2016