November 1, 2016

Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51621(U))

Headnote

The main issues in this case were whether the defendant had submitted proof of nonappearance of the plaintiff for independent medical examinations and whether the plaintiff had demonstrated entitlement to summary judgment. The court considered that the defendant failed to submit proof by someone with personal knowledge attesting to the nonappearance of the plaintiff for the examinations, which led to the denial of defendant's cross motion for summary judgment. However, the court also found that the plaintiff failed to demonstrate its entitlement to summary judgment, as the affidavit submitted in support of its motion did not establish that the claims at issue had not been timely denied. Therefore, the court modified the order by denying the defendant's cross motion for summary judgment dismissing the complaint but affirming the order with this modification.

Reported in New York Official Reports at Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51621(U))

Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51621(U)) [*1]

Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co.

2016 NY Slip Op 51621(U) [53 Misc 3d 147(A)]

Decided on November 1, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-491 Q C

Daily Medical Equipment Distribution Center, Inc., as Assignee of JURCELIN GARCIA, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 11, 2014. 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff correctly argues on appeal that, because defendant failed to submit proof by someone with personal knowledge attesting to the nonappearance of plaintiff for the independent medical examinations in question, defendant’s cross motion for summary judgment dismissing the complaint should have been denied (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

However, contrary to plaintiff’s remaining contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denials of claim that were 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 Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

Decision Date: November 01, 2016