March 11, 2014

VG Acupuncture, P.C. v Interboro Ins. Co. (2014 NY Slip Op 50410(U))

Headnote

The main issue in this case was the denial of plaintiff's motion for leave to enter a default judgment based on defendant's failure to appear in the action or answer the complaint. The court considered the fact that plaintiff's moving papers failed to establish that the defendant failed to pay or deny the claim within the requisite 30-day period, as well as the fact that plaintiff did not establish that the defendant issued a timely denial of claim that was conclusory, vague, or without merit as a matter of law. The court ultimately affirmed the denial of plaintiff's motion, finding that the plaintiff had not established its prima facie case. The holding of the case was that the order denying plaintiff's motion for leave to enter a default judgment was affirmed.

Reported in New York Official Reports at VG Acupuncture, P.C. v Interboro Ins. Co. (2014 NY Slip Op 50410(U))

VG Acupuncture, P.C. v Interboro Ins. Co. (2014 NY Slip Op 50410(U)) [*1]

VG Acupuncture, P.C. v Interboro Ins. Co.

2014 NY Slip Op 50410(U) [42 Misc 3d 149(A)]

Decided on March 11, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2994 K C.

VG Acupuncture, P.C. as Assignee of DANIEL ROBINSON, Appellant,
against
Interboro Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered October 20, 2011. The order denied plaintiff’s unopposed motion for leave to enter a default judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CPLR 3215, for leave to enter a default judgment based upon defendant’s failure to appear in the action or answer the complaint. The motion was unopposed. The Civil Court denied plaintiff’s motion, finding that plaintiff had not established its prima facie case.

Plaintiff’s moving papers failed to establish either that defendant 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., ___ AD3d ___, 2013 NY Slip Op 08430 [2d Dept 2013]), or that defendant 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]). As a result, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014