May 19, 2015

Gutierrez v Allstate Ins. Co. (2015 NY Slip Op 50799(U))

Headnote

The court considered the appeal of Jaime G. Gutierrez, as the assignee of Mustafa Arslan, from an order of the Civil Court denying plaintiff's motion for summary judgment in a case to recover assigned first-party no-fault benefits from Allstate Insurance Company. The main issue decided was whether plaintiff's moving papers had established that the defendant failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague, or without merit as a matter of law. The holding of the court was that plaintiff's moving papers failed to establish defendant's failure to pay or deny the claim within the required period, or that defendant had issued a timely denial of claim that was conclusory, vague, or without merit as a matter of law, and therefore, plaintiff had failed to establish its entitlement to summary judgment. The court affirmed the order of the Civil Court denying plaintiff's motion for summary judgment.

Reported in New York Official Reports at Gutierrez v Allstate Ins. Co. (2015 NY Slip Op 50799(U))

Gutierrez v Allstate Ins. Co. (2015 NY Slip Op 50799(U)) [*1]

Gutierrez v Allstate Ins. Co.

2015 NY Slip Op 50799(U) [47 Misc 3d 152(A)]

Decided on May 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2360 K C

Jaime G. Gutierrez as Assignee of MUSTAFA ARSLAN, Appellant, –
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 20, 2012. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, with $25 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 unopposed motion for summary judgment. We affirm.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 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, 11th & 13th Jud Dists 2011]). Thus, contrary to plaintiff’s argument on appeal, the Civil Court properly found that plaintiff had failed to establish its entitlement to summary judgment.

Accordingly, the order is affirmed.

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

Decision Date: May 19, 2015