Crossbay Acupuncture, P.C. v Nationwide Mut. Ins. Co.

[*1] Crossbay Acupuncture, P.C. v Nationwide Mut. Ins. Co. 2009 NY Slip Op 51496(U) [24 Misc 3d 136(A)] Decided on July 9, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-853 K C.

Crossbay Acupuncture, P.C. a/a/o KELVIN MACK, Appellant,

against

Nationwide Mutual Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Chan, J.), entered October 5, 2007. The order denied plaintiff's motion for summary judgment.

Order reversed without costs, plaintiff's motion for summary judgment granted and matter remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney's fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff's motion for summary judgment established plaintiff's prima facie entitlement to such relief (see Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]). Defendant did not submit papers opposing plaintiff's motion. Consequently, the Civil Court improperly denied plaintiff's unopposed motion for summary judgment.

Accordingly, the order is reversed, plaintiff's motion for summary judgment is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009