Optimal Well-Being Chiropractic, P.C. v Chubb Indem. Ins. Co.

[*1] Optimal Well-Being Chiropractic, P.C. v Chubb Indem. Ins. Co. 2014 NY Slip Op 51807(U) Decided on December 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1054 Q C

Optimal Well-being Chiropractic, P.C. as Assignee of PRINCE JOHNSON, Respondent,

against

Chubb Indemnity Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 29, 2012. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff's motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for

summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

Defendant correctly argues on appeal that plaintiff's motion should not have been granted, as plaintiff's moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period, or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; 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]).

Defendant's only argument on appeal with respect to its cross motion is, in essence, that the complaint should have been dismissed on the ground that plaintiff will not be able to demonstrate its right to recover at trial because plaintiff is precluded, pursuant to a prior so-ordered discovery stipulation, from offering, among other things, the bills or its own documentary proof of the submission of those bills. At a trial, a no-fault plaintiff's prima facie burden is to demonstrate proof of the submission to the defendant of the claim forms at issue (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33; Alev Med. Supply, Inc. v Geico Gen. Ins. Co., 44 Misc 3d 131[A], 2013 NY Slip Op 52322[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As the record demonstrates that the bills at issue were denied, and as the denials admit receipt of the bills (see 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]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]), [*2]defendant has not shown that plaintiff will not be able to establish its right to recover at trial. Therefore, defendant has not established a basis to disturb so much of the order as denied defendant's cross motion for summary judgment dismissing the complaint.

Accordingly, the order is modified by providing that plaintiff's motion for summary judgment is denied.

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

Decision Date: December 17, 2014