August 5, 2015

Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51216(U))

Headnote

The court considered the appeal from an order of the Civil Court of the City of New York, which denied the plaintiff's motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint. The main issue decided was whether defendant's denial of the claim was timely and without merit as a matter of law, and whether the insurance policy at issue had been cancelled. The holding was that the plaintiff's motion for summary judgment was properly denied as it failed to establish that defendant had issued a timely denial of claim that was conclusory, vague or without merit. However, the defendant's cross motion for summary judgment dismissing the complaint was denied due to the lack of sufficient proof that the insurance policy at issue had been cancelled. Therefore, the order was modified to deny defendant's cross motion for summary judgment.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51216(U))

Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51216(U)) [*1]

Delta Diagnostic Radiology, P.C. v Allstate Ins. Co.

2015 NY Slip Op 51216(U) [48 Misc 3d 138(A)]

Decided on August 5, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-389 Q C

Delta Diagnostic Radiology, P.C. as Assignee of CATHERINE WESTE, Appellant, August 5, 2015
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered September 24, 2012. 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’s moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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, 11th & 13th Jud Dists 2011]). Thus, plaintiff’s motion for summary judgment was properly denied.

However, as plaintiff argues on appeal, defendant failed to submit sufficient proof that the insurance policy at issue had been cancelled. While defendant submitted a copy of a cancellation letter, it did not submit any proof that the letter had been mailed to its insured as required by Vehicle and Traffic Law § 313 (1) (a). Therefore, defendant should not have been awarded summary judgment dismissing the complaint.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment is denied.

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

Decision Date: August 05, 2015