Alleviation Med. Servs., P.C. v American Tr. Ins. Co.

[*1] Alleviation Med. Servs., P.C. v American Tr. Ins. Co. 2015 NY Slip Op 51628(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-942 Q C

Alleviation Medical Services, P.C. as Assignee of ROSE FICY, Appellant,

against

American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered March 15, 2013. The order, insofar as appealed from, denied plaintiff's motion for summary judgment.

ORDERED that the order, insofar as appealed from, 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. Plaintiff appeals from so much of an order of the Civil Court entered March 15, 2013 as denied plaintiff's motion, finding that defendant had demonstrated the existence of a triable issue of fact.

Because plaintiff failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 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 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]), plaintiff failed to demonstrate its prima facie entitlement to summary judgment. As a result, the burden never shifted to defendant and, thus, we need not reach plaintiff's contention that defendant failed to demonstrate the existence of a triable issue of fact.

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

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

Decision Date: November 09, 2015