Queens Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co.

[*1] Queens Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. 2015 NY Slip Op 51272(U) Decided on August 26, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2011-284 K C

Queens Medical Supply, Inc. as Assignee of LANCE MACK, Respondent,

against

IDS Property & Casualty Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered September 23, 2010, deemed from a judgment of the same court entered April 9, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 23, 2010 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,877.85.

ORDERED that the judgment 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. By order entered September 23, 2010, the Civil Court granted plaintiff's motion and denied defendant's cross motion. Defendant's appeal from the order is deemed to be from the judgment entered pursuant thereto on April 9, 2012 (see CPLR 5501 [c]). On appeal, defendant argues that plaintiff failed to demonstrate its prima facie entitlement to summary judgment and that the cross motion should have been granted.

Contrary to defendant's contention, the affidavit submitted by plaintiff in support of its motion was sufficient to establish plaintiff's prima facie entitlement to summary judgment (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). Moreover, defendant admits that it received plaintiff's claims in September and October of 2007, and it is undisputed that the claims were not paid or denied within 30 days of their receipt. Defendant has not established that its time to pay or deny the claims had been tolled. As defendant failed to demonstrate that the claims had been timely denied, it failed to raise a triable issue of fact. Consequently, plaintiff's motion for summary judgment was properly granted and defendant's cross motion for summary judgment was properly denied (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

The decision and order of this court dated November 26, 2013 (41 Misc 3d 139[A], 2013 NY Slip Op 51996[U]) are hereby recalled and vacated (see motion decided simultaneously herewith).

Accordingly, the judgment is affirmed.

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

Decision Date: August 26, 2015