Reported in New York Official Reports at Energy Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50572(U))
| Energy Chiropractic, P.C. v Nationwide Ins. |
| 2022 NY Slip Op 50572(U) [75 Misc 3d 137(A)] |
| Decided on June 10, 2022 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-78 K C
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 9, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
For the reasons stated in MSB Physical Therapy, P.C., as Assignee of Reid, Shamel W. v Nationwide Ins. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2019-1349 K C], decided herewith), the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022
Reported in New York Official Reports at Hands On Physical Therapy Care v Ameriprise Ins. (2022 NY Slip Op 50571(U))
| Hands On Physical Therapy Care v Ameriprise Ins. |
| 2022 NY Slip Op 50571(U) [75 Misc 3d 137(A)] |
| Decided on June 10, 2022 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-75 K C
against
Ameriprise Insurance, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Callinan & Smith LLP (Michael A. Callinan of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered August 27, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment.
For the reasons stated in PFJ Med. Care, P.C., as Assignee of Simmond, Tylon B. v Nationwide Ins. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2020-74 K C], decided herewith), the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: June 10, 2022
Reported in New York Official Reports at PFJ Med. Care, P.C. v Nationwide Ins. (2022 NY Slip Op 50570(U))
| PFJ Med. Care, P.C. v Nationwide Ins. |
| 2022 NY Slip Op 50570(U) [75 Misc 3d 137(A)] |
| Decided on June 10, 2022 |
| 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 June 10, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-74 K C
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 26, 2019. 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 affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s sole contention on appeal with respect to defendant’s cross motion for summary judgment dismissing the complaint, the affirmations submitted by defendant’s counsel, as well as the transcripts of the examinations under oath (EUOs), were sufficient to establish that plaintiff had failed to appear for the EUOs (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022
Reported in New York Official Reports at Columbus Imaging Ctr., LLC v Erie Ins. Co. of N.Y. (2022 NY Slip Op 50569(U))
| Columbus Imaging Ctr., LLC v Erie Ins. Co. of N.Y. |
| 2022 NY Slip Op 50569(U) [75 Misc 3d 137(A)] |
| Decided on June 10, 2022 |
| 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 June 10, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-73 K C
against
Erie Insurance Company of New York, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Robyn M. Brilliant (Robyn M. Brilliant of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 27, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s sole contention on appeal with respect to defendant’s motion for summary judgment, defendant did not need to demonstrate, as part of its prima facie case, that the first independent medical examination scheduling letter had been sent to plaintiff’s assignor within 15 days of defendant’s receipt of either the NF-2 or a claim received from another provider (see City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 70 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; 11 NYCRR 65-3.5 [b]; Appendix 13; see also State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454 [2021]; Excel Prods., Inc. v Ameriprise Auto & Home, 71 Misc 3d 136[A], 2021 NY Slip Op 50435[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022
Reported in New York Official Reports at Pain Med., PLLC v Tri State Consumer Ins. Co. (2022 NY Slip Op 50567(U))
| Pain Med., PLLC v Tri State Consumer Ins. Co. |
| 2022 NY Slip Op 50567(U) [75 Misc 3d 137(A)] |
| Decided on June 10, 2022 |
| 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 June 10, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1739 K C
against
Tri State Consumer Insurance Company, Appellant.
Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 27, 2019. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers’ compensation fee schedule.
ORDERED that the appeal is dismissed.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. Defendant also sought summary judgment dismissing so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers’ compensation fee schedule. Plaintiff opposed defendant’s motion. By order entered January 12, 2019, the Civil Court denied the branches of defendant’s motion seeking to dismiss so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers’ compensation fee schedule but granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the services were not medically necessary.
As the order appealed from held that defendant was entitled to summary judgment dismissing all of the claims on the ground that all of the services were not medically necessary, defendant is not aggrieved by so much of the order as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers’ compensation fee schedule (see CPLR 5511; Parochial Bus Sys. v Board of Educ. of City of NY, 60 NY2d 539, 545 [1983]; Botie [*2]v Town of Babylon, 71 Misc 3d 1298[A], 2021 NY Slip Op 50234[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]).
Accordingly, the appeal is dismissed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022
Reported in New York Official Reports at Dr. Orenbakh Psychologist, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 50566(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Nationwide Affinity Ins. Co. of America, Appellant.
Hollander Legal Group, P.C. (Alan S. Hollander, of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered August 20, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint and, upon a search of the record, awarded plaintiff summary judgment upon the claim which defendant received on February 2, 2016.
ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant received on February 8, 2016 through March 10, 2016 are granted; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered August 20, 2019, the Civil Court found that there were issues of fact with respect to the mailing of the EUO scheduling letters and whether plaintiff failed to appear. The court held that defendant’s denial of the claim it received on February 2, 2016 was untimely and, upon a search of the record, awarded plaintiff summary judgment upon that claim.
Upon a review of the record, we find that defendant sufficiently established that the EUO scheduling letters had been mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; JCC Med., P.C. v Lancer Ins. Co., 71 Misc 3d 140[A], 2021 NY Slip Op 50485[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Parisien v Ameriprise Ins., 68 Misc 3d 131[A], 2020 NY Slip Op 50990[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), and the affirmations from the attorney who was prepared to conduct the EUOs as well as the [*2]certified transcripts of the EUOs demonstrated that plaintiff had failed to appear for either of the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the record further shows that defendant timely denied the claims which defendant received on February 8, 2016 through March 10, 2016 on the ground that plaintiff had failed to appear for the scheduled EUOs (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to this showing, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims should have been granted.
With respect to the remaining claim, defendant admitted that it received the claim form on February 2, 2016 and that the first EUO scheduling letter was not mailed until March 4, 2016, more than 30 days after receipt of that claim. Thus, defendant did not demonstrate that it is not precluded from raising its proffered defense as to this claim, as the EUO request was a nullity as to that claim (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, the branch of defendant’s motion seeking summary judgment upon that claim was properly denied. Defendant raises no other issue with respect to so much of the order as, upon a search of the record, awarded summary judgment to plaintiff upon this claim. Thus, we leave that part of the order undisturbed.
Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant received on February 8, 2016 through March 10, 2016 are granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022
Reported in New York Official Reports at Tam Med. Supply Corp. v American Ind. Ins. Co. (2022 NY Slip Op 50565(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Independent Ins. Co., Appellant, and Omni Indemnity Company, American Independent Insurance Companies, Inc. and Good2Go Auto Insurance, Defendants.
Tam Medical Supply Corp., as Assignee of Destin, Woldine, Respondent,
against
American Independent Ins. Co., Appellant, and Omni Indemnity Company, American Independent Insurance Companies, Inc. and Good2Go Auto Insurance, Defendants.
Freiberg, Peck & Kang, LLP (Yilo Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
Appeals from orders of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), each entered November 20, 2018. The first order (appeal No. 2019-1567 K C) denied a motion to dismiss the complaint insofar as asserted against defendant American Independent Ins. Co. The second order (appeal No. 2022-138 K C), insofar as appealed from, denied the branches of a motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance.
ORDERED that the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the order being appealed under appeal number 2019-1567 K C is reversed, with $30 costs, and the motion to dismiss the complaint insofar as asserted against defendant American Independent Ins. Co. is granted; and it is further,
ORDERED that the order being appealed under appeal number 2022-138 K C, insofar as appealed from, is reversed, with $30 costs, and the branches of the motion seeking to dismiss so [*2]much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance are granted.
In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant American Independent Ins. Co. moved to dismiss the complaint insofar as asserted against it on the ground that plaintiff had failed to obtain personal jurisdiction over it. Defendants American Independent Insurance Companies, Inc., Good2Go Auto Insurance and Omni Indemnity Company moved, in a single motion, to dismiss so much of the complaint as was asserted against them on the ground that plaintiff had failed to obtain personal jurisdiction over them. Plaintiff opposed both motions and cross-moved for summary judgment. Defendant American Independent Ins. Co. appeals (appeal No. 2019-1567 K C) from an order of the Civil Court entered November 20, 2018 denying the motion to dismiss the complaint insofar as asserted against it. Defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance appeal (appeal No. 2022-138 K C) from so much of a separate order of the Civil Court, also entered November 20, 2018, as denied the branches of the motion seeking to dismiss so much of the complaint as was asserted against them.
For the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co. (69 Misc 3d 127[A], 2020 NY Slip Op 51118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order being appealed under appeal number 2019-1567 K C and the order being appealed under appeal number 2022-138 K C, insofar as appealed from, are reversed. The first motion, by defendant American Independent Ins. Co., is granted, and the branches of the second motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance are granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022
Reported in New York Official Reports at MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 50564(U))
| MSB Physical Therapy, P.C. v Nationwide Ins. |
| 2022 NY Slip Op 50564(U) [75 Misc 3d 136(A)] |
| Decided on June 10, 2022 |
| 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 June 10, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1349 K C
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander 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 June 28, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s sole appellate contention with respect to defendant’s motion for summary judgment, defendant did not need to demonstrate, as part of its prima facie case, that the first examination under oath scheduling letter had been sent to plaintiff’s assignor within 15 days of defendant’s receipt of either the NF-2 or a claim received from another provider (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Excel Prods., Inc. v Ameriprise Auto & Home, 71 Misc 3d 136[A], 2021 NY Slip Op 50435[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; see also State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454 [2021]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022
Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v American Ind. Ins. Co. (2022 NY Slip Op 50563(U))
| Charles Deng Acupuncture, P.C. v American Ind. Ins. Co. |
| 2022 NY Slip Op 50563(U) [75 Misc 3d 136(A)] |
| Decided on June 3, 2022 |
| 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 June 3, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1537 K C
against
American Independent Ins. Co., Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 20, 2018. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to dismiss the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant moved to dismiss the complaint on the ground, among others, that plaintiff had failed to obtain personal jurisdiction over it. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of the order of the Civil Court as denied defendant’s motion seeking dismissal of the complaint.
For the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co. (69 Misc 3d 127[A], 2020 NY Slip Op 51118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order, insofar as appealed from, is reversed, and defendant’s motion to dismiss the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 3, 2022
Reported in New York Official Reports at JPC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50562(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel.), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered May 15, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint 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 granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).
Contrary to plaintiff’s contention that its cross motion for summary judgment should have been granted, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue [*2]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 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 is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: June 3, 2022