Right Aid Med. Supply Corp. v Geico Ins. Co.

[*1] Right Aid Med. Supply Corp. v Geico Ins. Co. 2012 NY Slip Op 51717(U) Decided on August 31, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-397 K C.

Right Aid Medical Supply Corp. as Assignee of ANDRE KYLES, Respondent,

against

Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered November 24, 2010, deemed from a judgment of the same court entered December 13, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 24, 2010 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $1,768.76.

ORDERED that the judgment is reversed, without costs, the order entered November 24, 2010 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, defendant appeals from an order of the Civil Court entered November 24, 2010 which granted plaintiff's motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff annexed to its motion for summary judgment a copy of defendant's denial of claim form, which was timely on its face. Plaintiff failed to show that the denial was untimely or that the basis for that denial was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of [*2]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, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, the order entered November 24, 2010 is vacated, and plaintiff's motion for summary judgment is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012