Greenway Med. Supply Corp. v Hartford Ins. Co.

[*1] Greenway Med. Supply Corp. v Hartford Ins. Co. 2017 NY Slip Op 51262(U) Decided on September 22, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN SOLOMON, JJ
2014-2234 K C

Greenway Medical Supply Corp., as Assignee of Cowan Janoi, Respondent,

against

Hartford Insurance Company, Appellant.

Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 18, 2014. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon the assignor's failure to appear for independent medical examinations. Insofar as is relevant to this appeal, the Civil Court denied defendant's motion but held, in effect pursuant to CPLR 3212 (g), that, as to defendant, the only remaining issue for trial was the timely and proper mailing of the denial of claim forms.

The proof submitted by defendant in support of its motion was sufficient to establish that defendant had timely denied the claims at issue (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, defendant's motion for summary judgment dismissing the complaint should have been granted.

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017