November 13, 2020

Wave Med. Servs., P.C. v Global Liberty Ins. (2020 NY Slip Op 51383(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York, Kings County, which granted the branch of the plaintiff's motion seeking summary judgment upon the second cause of action. The main issue decided was whether the plaintiff had established its prima facie entitlement to summary judgment upon the second cause of action, which involved a provider seeking to recover assigned first-party no-fault benefits. The holding of the case was that the order, insofar as appealed from, was reversed, with $30 costs, and the branch of plaintiff's motion seeking summary judgment upon the second cause of action was denied. The court found that the plaintiff had failed to establish its entitlement to summary judgment, as it did not prove that the defendant failed to timely deny the claim at issue or that the defendant issued a timely denial of claim form that was conclusory, vague, or without merit as a matter of law.

Reported in New York Official Reports at Wave Med. Servs., P.C. v Global Liberty Ins. (2020 NY Slip Op 51383(U))

Wave Med. Servs., P.C. v Global Liberty Ins. (2020 NY Slip Op 51383(U)) [*1]

Wave Med. Servs., P.C. v Global Liberty Ins.

2020 NY Slip Op 51383(U) [69 Misc 3d 145(A)]

Decided on November 13, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2019-163 K C

Wave Medical Services, P.C., as Assignee of Marcel Fabiola, Respondent,
against
Global Liberty Insurance, Appellant.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated December 5, 2018. The order, insofar as appealed from as limited by the brief, granted the branch of plaintiff’s motion seeking summary judgment upon the second cause of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of plaintiff’s motion seeking summary judgment upon the second cause of action is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branch of plaintiff’s motion seeking summary judgment upon the second cause of action.

Plaintiff failed to establish its prima facie entitlement to summary judgment upon the second cause of action, since plaintiff did not establish either that defendant failed to timely deny the claim at issue (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant 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]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of plaintiff’s [*2]motion seeking summary judgment upon the second cause of action is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020