September 22, 2017

Laga v American Commerce Ins. Co. (2017 NY Slip Op 51250(U))

Headnote

The court considered the denial of summary judgment by the Civil Court as well as the granting of defendant's cross motion for summary judgment dismissing the complaint. The main issue decided was whether the plaintiff was entitled to summary judgment in an action to recover assigned first-party no-fault benefits, and whether the denial of the claim was timely. The court held that the defendant failed to establish that it had timely denied the claim underlying the sixth cause of action, so the branch of defendant's cross motion seeking summary judgment dismissing that cause of action should have been denied. The order was affirmed as to the remaining causes of action, and it was modified to provide that the branch of defendant's cross motion seeking summary judgment dismissing the sixth cause of action is denied.

Reported in New York Official Reports at Laga v American Commerce Ins. Co. (2017 NY Slip Op 51250(U))

Laga v American Commerce Ins. Co. (2017 NY Slip Op 51250(U)) [*1]

Laga v American Commerce Ins. Co.

2017 NY Slip Op 51250(U) [57 Misc 3d 134(A)]

Decided on September 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1973 Q C

Adelaida M. Laga, PT, as Assignee of Noel, Jocelyn, Appellant,
against
American Commerce Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 30, 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 the branch of defendant’s cross motion seeking summary judgment dismissing the sixth cause of action 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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath.

Plaintiff correctly argues that defendant failed to establish that it had timely denied the claim underlying the sixth cause of action. Thus, the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action should have been denied. However, plaintiff is not entitled to summary judgment on this cause of action, as plaintiff failed to establish that the claim 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 a timely denial of this 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], [*2]2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

The order is affirmed as to the remaining causes of action for the reason stated in Laga, as Assignee of Noel, Jocelyn v American Commerce Ins. Co. (— Misc 3d &mdash, 2017 NY Slip Op — [appeal No. 2014-2015 Q C], decided herewith).

Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the sixth cause of action is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017