Compas Med., P.C. v Geico Ins. Co. (2014 NY Slip Op 51259(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 11, 2011. 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court held that plaintiff had failed to make a prima facie showing and, on that basis, it granted defendant’s cross motion for summary judgment dismissing the complaint. On appeal, plaintiff argues that its motion for summary judgment should have been granted and that, in any event, defendant’s cross motion should not have been granted.

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]). Thus, plaintiff failed to establish its entitlement to summary judgment, and its motion for summary judgment was properly denied.

Defendant denied plaintiff’s claims on three grounds: some, based on a lack of medical necessity; some, for exceeding the amount permitted by the workers’ compensation fee schedule; and some, because the claims were allegedly untimely as they had been submitted more than 45 days after the services had been rendered. As to the claims denied on the ground of a lack of medical necessity, the affidavit submitted by plaintiff’s treating doctor was sufficient to demonstrate the existence of a triable issue of fact. As to the claims which were denied based upon the workers’ compensation fee schedule or because they were untimely, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing these claims. As a result, defendant’s cross motion for summary judgment dismissing the complaint should have [*2]been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

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