GL Acupuncture, P.C. v Geico Ins. Co.

[*1] GL Acupuncture, P.C. v Geico Ins. Co. 2015 NY Slip Op 51239(U) Decided on August 6, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-723 Q C

GL Acupuncture, P.C. as Assignee of RONDELL QUICK, Appellant, August 6, 2015

against

Geico Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 21, 2012. 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 modified by providing that defendant's cross motion for summary judgment dismissing the complaint 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, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Plaintiff's moving papers failed to establish either that defendant had failed to 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]; 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]). Thus, plaintiff's motion for summary judgment was properly denied.

However, defendant failed to demonstrate, as a matter of law, that it had filed a copy of the notice of cancellation, upon which its defense is based, with the Department of Motor Vehicles within 30 days of the effective date of the cancellation as required by Vehicle and Traffic Law § 313 (2) (a) (see Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]). Therefore, defendant has not demonstrated that the cancellation is effective with respect to plaintiff's assignor, who was not the named insured or a member of his household (Vehicle and Traffic Law § 313 [3]). Consequently, defendant should not have been awarded summary judgment dismissing the complaint.

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 06, 2015