March 17, 2015

Parkview Med. & Surgical, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50400(U))

Headnote

The court considered an appeal from a judgment in favor of Parkview Medical & Surgical, P.C., as assignee of Ralph Allison, against Allstate Insurance Company. The main issue was whether a no-fault provider had established its prima facie entitlement to judgment as a matter of law, based on submitting evidence that claim forms were mailed to and received by the defendant insurer, and whether the defendant had failed to pay or deny the claims within the prescribed 30-day period. The holding of the case was that the judgment in favor of the plaintiff was reversed, the original order was vacated, and the plaintiff's motion for summary judgment was ultimately denied. The court found that the plaintiff had failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law, and there was a triable issue of fact demonstrated by the defendant's evidence.

Reported in New York Official Reports at Parkview Med. & Surgical, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50400(U))

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

Parkview Medical & Surgical, P.C., as Assignee of RALPH ALLISON, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered May 30, 2012, deemed from a judgment of the same court entered June 25, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 30, 2012 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,358.

ORDERED that the judgment is reversed, with $30 costs, the order entered May 30, 2012 is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

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 which 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 owner 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 should have been denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33). In any event, the affidavit by defendant’s litigation examiner and the attached complete copies of the denial of claim submitted in opposition to plaintiff’s motion were sufficient to demonstrate the existence of a triable issue of fact.

Accordingly, the judgment is reversed, the order entered May 30, 2012 is vacated, and plaintiff’s motion for summary judgment is denied.

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

Decision Date: March 17, 2015