Forrest Chen Acupuncture Servs., P.C. v Allstate Ins. Co.

[*1] Forrest Chen Acupuncture Servs., P.C. v Allstate Ins. Co. 2007 NY Slip Op 52281(U) [17 Misc 3d 136(A)] Decided on November 20, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1996 Q C.

Forrest Chen Acupuncture Services, P.C. as assignee of Igor Makler, Appellant,

against

Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Arthur F. Engoron, J.), entered June 30, 2006. The order, insofar as appealed from, upon finding for all purposes pursuant to CPLR 3212 (g) that plaintiff established a prima facie case, denied plaintiff's motion for summary judgment on the ground that triable issues of fact exist.

Order, insofar as appealed from, reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below 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 moved for summary judgment on the ground that defendant's defenses were precluded by a defective denial of claim form. Defendant did not oppose the motion. The court granted plaintiff's unopposed motion to the extent of holding that plaintiff made a prima facie showing for all purposes pursuant to CPLR 3212 (g), but the court nevertheless found that defendant's denial of claim form raised triable issues of fact. This appeal by plaintiff ensued.

Since defendant raised no issue in the court below or on appeal concerning plaintiff's establishment of its prima facie case, we do not pass on the propriety of the court's determination with respect thereto. Consequently, having found that plaintiff made a prima facie showing, since defendant did not submit any opposition, plaintiff's motion for summary judgment should have been granted (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In view of the foregoing, plaintiff's motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an
assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations [*2]promulgated thereunder.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 20, 2007