August 8, 2014

(2014 NY Slip Op 51267(U))

Headnote

The court considered the denial of plaintiff's motion for summary judgment in an action to recover assigned first-party no-fault benefits. The main issue was whether the plaintiff's moving papers established that the defendant had 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 court held that plaintiff's moving papers failed to establish either of these criteria, and therefore, the denial of the motion for summary judgment was affirmed. The decision was that plaintiff had failed to establish its entitlement to summary judgment, and the order was affirmed.

Reported in New York Official Reports at (2014 NY Slip Op 51267(U))

(2014 NY Slip Op 51267(U)) [*1]

SP Orthotic Surgical & Med. Supply, Inc. v American Tr. Ins. Co.

2014 NY Slip Op 51267(U) [44 Misc 3d 139(A)]

Decided on August 8, 2014

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through August 19, 2014; it will not be published in the printed Official Reports.

Decided on August 8, 2014

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2012-1291 K C

SP Orthotic Surgical & Medical Supply, Inc. as Assignee of RICARDO MARICHAL, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered April 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 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 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, 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., Weston and Aliotta, JJ., concur.

Decision Date: August 08, 2014