Healthway Med. Care, P.C. v Travelers Ins. Co.

[*1] Healthway Med. Care, P.C. v Travelers Ins. Co. 2014 NY Slip Op 51870(U) Decided on December 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-893 Q C

Healthway Medical Care, P.C. as Assignee of CONSTANCE CRAIG, Appellant,

against

Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 5, 2013. 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals from an order of the Civil Court which denied plaintiff's motion and granted defendant's cross motion. Plaintiff was not entitled to summary judgment, since it failed to demonstrate, prima facie, either that defendant had failed to timely deny the claims or that the denial of claim forms were conclusory, vague or without merit as a matter of law (see Insurance Law § 5102 [a]; 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]).

On its cross motion for summary judgment, the burden was on defendant to demonstrate the timely and valid cancellation of the insurance policy at issue based on nonpayment of the premium. The papers submitted by defendant in support of its cross motion were sufficient to make a prima facie showing that defendant met its initial burden in compliance with Vehicle and Traffic Law § 313 (see Matter of Auto One Ins. Co. v Forrester, 78 AD3d 1174 [2010]; GEICO Indem. v Roth, 56 AD3d 1244 [2008]; Queens Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 35 Misc 3d 146[A], 2012 NY Slip Op 51060[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). The burden then shifted to plaintiff, as the party claiming coverage, to establish defendant's noncompliance with the statutory requirements as to form and procedure. Inasmuch as plaintiff submitted no opposition to defendant's cross motion, plaintiff failed to raise a triable issue of fact (see Flagstar Bank v Bellafiore, 94 AD3d 1044 [2012]) as to the validity of the cancellation of the policy.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 22, 2014