June 13, 2014

J.C. Healing Touch Rehab, P.C. v Amica Mut. Ins. Co. (2014 NY Slip Op 50969(U))

Headnote

The main issue in the case was whether a no-fault provider had established its entitlement to judgment as a matter of law in a lawsuit to recover assigned first-party no-fault benefits. The provider sought summary judgment, claiming that the defendant insurer had failed to pay or deny the claims within the prescribed 30-day period. The court found that while the provider's affidavit established that the claim forms had been mailed to the defendant and that the defendant had failed to pay the claims within the 30-day period, the affidavit did not demonstrate that the defendant had failed to deny the claims within the 30-day period or that the defendant had issued timely denial of claim forms which were conclusory, vague, or without merit as a matter of law. As a result, the court denied the provider's motion for summary judgment, affirming the order without costs.

Reported in New York Official Reports at J.C. Healing Touch Rehab, P.C. v Amica Mut. Ins. Co. (2014 NY Slip Op 50969(U))

J.C. Healing Touch Rehab, P.C. v Amica Mut. Ins. Co. (2014 NY Slip Op 50969(U)) [*1]

J.C. Healing Touch Rehab, P.C. v Amica Mut. Ins. Co.

2014 NY Slip Op 50969(U) [44 Misc 3d 127(A)]

Decided on June 13, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 13, 2014

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

PRESENT: : WESTON, J.P., ALIOTTA and SOLOMON, JJ.
2011-3112 K C

J.C. Healing Touch Rehab, P.C. as Assignee of NORBERTO RICHARDS, Appellant,
against
Amica Mutual Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 1, 2011. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to judgment as a matter of law by submitting evidence, in admissible form, that the claim forms were mailed to and received by the defendant insurer, which failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]), or issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law; 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]).

While the supporting affidavit by plaintiff’s billing agent established that plaintiff had mailed the claim forms in question to defendant, and that defendant had failed to pay those claims within the requisite 30-day period, the affidavit failed to demonstrate either that defendant had failed to deny the claims within the requisite 30-day period or that defendant had issued timely denial of claim forms which were conclusory, vague or without merit as a matter of law. As plaintiff failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law, plaintiff’s motion for summary judgment was properly denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: June 13, 2014