March 16, 2016

Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50373(U))

Headnote

The main issue in this case was whether the defendant was entitled to summary judgment dismissing the complaint filed by the plaintiff, who sought to recover assigned first-party no-fault benefits. The court considered whether the defendant had timely denied the claim in question and whether the plaintiff had demonstrated its entitlement to summary judgment. The court held that the defendant's motion for summary judgment dismissing the complaint was denied, as the defendant had failed to establish its entitlement to judgment as a matter of law. However, the court also held that the plaintiff had also failed to demonstrate its entitlement to summary judgment, as it did not establish that the claim had not been timely denied or that the defendant had issued a timely denial of the claim. Therefore, the court modified the order to deny the defendant's motion for summary judgment.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50373(U))

Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50373(U)) [*1]

Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co.

2016 NY Slip Op 50373(U) [51 Misc 3d 128(A)]

Decided on March 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
&em;

Great Health Care Chiropractic, P.C. as Assignee of JUNIOR NOEL, Appellant,
against
Unitrin Direct Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 9, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered July 9, 2013, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

As defendant’s moving papers did not establish that defendant had timely denied the claim at issue, defendant failed to establish its entitlement to judgment as a matter of law dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Consequently, defendant’s motion should have been denied.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue 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 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 motion for summary judgment is denied.

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

Decision Date: March 16, 2016