Tyorkin v Park Ins. Co. (2019 NY Slip Op 50682(U))

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Law Office of Marina Josovich, P.C. (Marina Josovich of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered July 28, 2016, deemed from a judgment of that court entered September 27, 2016 (see CPLR 5501[c]). The judgment, entered pursuant to the July 28, 2016 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $9,753.88.

ORDERED that the judgment is reversed, with $30 costs, so much of the July 28, 2016 order as granted plaintiff’s motion for summary judgment 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered July 28, 2016, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. This appeal by defendant ensued. A judgment was subsequently entered on September 27, 2016, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff’s motion for summary judgment should have been denied, as the proof submitted by plaintiff failed to establish that the claim had not been timely denied (see Viviane Etienne [*2]Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form 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], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As defendant’s papers failed to establish, as a matter of law, that there was a lack of medical necessity, defendant’s cross motion was properly denied.

Accordingly, the judgment is reversed, so much of the July 28, 2016 order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

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