Bay LS Med. Supplies, Inc. v Allstate Ins. Co.

[*1] Bay LS Med. Supplies, Inc. v Allstate Ins. Co. 2015 NY Slip Op 51626(U) Decided on November 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-825 Q C

BAY LS Medical Supplies, Inc. as Assignee of CHRISTIAN PEREZ, Respondent,

against

Allstate 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 8, 2013. The order, insofar as appealed from and as limited by the brief, upon denying the branch of plaintiff's motion seeking summary judgment upon the first cause of action, made CPLR 3212 (g) findings in plaintiff's favor with respect to that cause of action, granted the branch of plaintiff's motion seeking summary judgment upon the second cause of action, and denied the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action. So much of the notice of appeal as is from the portion of the order which granted the branch of plaintiff's motion seeking summary judgment upon the second cause of action is deemed to be a notice of appeal from a judgment of the same court entered March 15, 2013, awarding plaintiff the principal sum of $735 (see CPLR 5512 [a]).

ORDERED that the judgment is reversed, without costs, so much of the order entered February 8, 2013 as granted the branch of plaintiff's motion seeking summary judgment on the second cause of action is vacated, and that branch of plaintiff's motion is denied; and it is further,

ORDERED that the order, insofar as appealed from and insofar as reviewed on direct appeal, is reversed, with $30 costs, and the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action is granted.

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. Insofar as is relevant to this appeal, by order entered February 8, 2013, the Civil Court granted plaintiff's motion for summary judgment upon the second cause of action; upon denying plaintiff's motion for summary judgment upon the first cause of action, made CPLR 3212 (g) findings in plaintiff's favor with respect to that cause of action; denied the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action; and held that the only remaining issue for trial upon the first cause of action was whether defendant had timely and properly mailed the denial of claim form with respect to the claim underlying that cause of action.

Plaintiff's moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide [*2]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 did not establish its prima facie entitlement to summary judgment. As a result, the branch of plaintiff's motion seeking summary judgment upon the second cause of action should have been denied.

In support of the branch of its cross motion seeking summary judgment dismissing the first cause of action, defendant submitted an affidavit by its special investigator which set forth the standard mailing practices and procedures by which he had mailed the denial of claim form at issue to plaintiff. Defendant also submitted a copy of the certified mail, return receipt card bearing the subject claim number, which reflected that plaintiff had signed for the envelope which, in accordance with the affiant's standard office practice and procedure, contained the subject denial of claim form (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As plaintiff failed to submit an affidavit in opposition to defendant's cross motion, defendant's proof that the denial of claim form had been timely and properly mailed to plaintiff was unrebutted. In view of the foregoing, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment dismissing the first cause of action, insofar as the order denied that branch of defendant's cross motion, it is reversed and the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action is granted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, we do not reach the issue of whether the Civil Court properly made CPLR 3212 (g) findings in favor plaintiff on this cause of action.

Accordingly, the judgment is reversed, so much of the order entered February 8, 2013 as granted the branch of plaintiff's motion seeking summary judgment on the second cause of action is vacated, and that branch of plaintiff's motion is denied. In addition, the order, insofar as appealed from and insofar as reviewed on direct appeal,

is reversed, and the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action is granted.

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

Decision Date: November 09, 2015