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

[*1] Right Aid Med. Supply Corp. v Allstate Ins. Co. 2014 NY Slip Op 50627(U) Decided on April 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-956 K C.

Right Aid Medical Supply Corp. as Assignee of DOLERES WONG, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered January 20, 2011. The order, insofar as appealed from, upon denying plaintiff's motion for summary judgment, limited the issues for trial to the timeliness and propriety of defendant's denial of claim forms and to the defenses preserved in such denials (see CPLR 3212 [g]).

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The Civil Court denied the motion, but limited the issues for trial to the timeliness and propriety of defendant's denial of claim forms and to the defenses preserved in such denials. Defendant argues on appeal that the Civil Court, in effect, granted plaintiff's motion for summary judgment, and that it should not have made CPLR 3212 (g) findings in plaintiff's favor.

Contrary to defendant's position on appeal, the court did not grant plaintiff's motion for summary judgment. Rather, the court limited the issues of fact for trial, which it is permitted to do when a motion for summary judgment is denied or partially denied (see CPLR 3212 [g]).

Defendant fails to articulate a sufficient basis to strike the Civil Court's CPLR 3212 (g) findings in plaintiff's favor (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., ___ AD3d ___ 2013 NY Slip Op 08430 [2d Dept 2013]). Defendant's contention on appeal that plaintiff had failed to demonstrate the submission to defendant of the claim forms in question is without merit, as defendant admitted receipt of each of the claim forms at issue. Defendant's remaining contention lacks merit.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 2014