May 19, 2015

Bay Ls Med. Supplies, Inc. v Allstate Ins. Co. (2015 NY Slip Op 50802(U))

Headnote

The court considered a case in which Bay LS Medical Supplies, Inc. sought to recover assigned first-party no-fault benefits from Allstate Insurance Company. Bay LS Medical Supplies, Inc. moved for summary judgment, and the Civil Court granted the motion, awarding Bay LS Medical Supplies, Inc. $930. Allstate Insurance Company appealed the decision, arguing that Bay LS Medical Supplies, Inc. did not establish entitlement to summary judgment and that reverse summary judgment was not appropriate. The Appellate Term, Second Department agreed with Allstate Insurance Company, finding that Bay LS Medical Supplies, Inc. had not made a prima facie showing of entitlement to summary judgment and reversed the judgment, vacated the order granting the motion for summary judgment, and denied Bay LS Medical Supplies, Inc.'s motion.

Reported in New York Official Reports at Bay Ls Med. Supplies, Inc. v Allstate Ins. Co. (2015 NY Slip Op 50802(U))

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

Bay LS Medical Supplies, Inc. as Assignee of MATIAS RAMOS, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered September 5, 2012, deemed from a judgment of the same court entered November 1, 2012 (see CPLR 5512 [a]). The judgment, entered pursuant to the September 5, 2012 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $930.

ORDERED that the judgment is reversed, with $30 costs, the order entered September 5, 2012 granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. By order entered September 5, 2012, the Civil Court granted plaintiff’s motion. A judgment awarding plaintiff the principal sum of $930 was entered on November 1, 2012. Defendant’s subsequently filed notice of appeal from the September 5, 2012 order is deemed to be a notice of appeal from the judgment entered November 1, 2012 (see CPLR 5512 [a]).

Defendant correctly argues on appeal that plaintiff did not make a prima facie showing of entitlement to summary judgment, as plaintiff failed to establish that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; 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]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Contrary to defendant’s further argument on appeal, reverse summary judgment is not appropriate in this case (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51852[U] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, the judgment is reversed, the order entered September 5, 2012 granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

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

Decision Date: May 19, 2015