FEMA Med. Supply, Inc. v. Country-Wide Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 25, 2018
• Docket: 2018 NYSlipOp 50782(U)
• Status: Published

Opinion

FEMA Medical Supply, Inc., as Assignee of Erickson Gil, Jesus Rodrigo-Garcia, Darrell Belton, Colin Noel and Jesus Hernandez-Garcia, Appellant,

against

Country-Wide Insurance Company, Respondent.

Amos Weinberg, for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered September 29, 2015. 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 appeals from so much of an order of the Civil Court as denied plaintiff's motion for summary judgment.

A provider establishes its entitlement to summary judgment by demonstrating that its bills were submitted to the insurer and either that they were not paid or denied 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 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 Dept, 2d, 11th & 13th Jud Dists 2011]). Here, plaintiff failed to establish, as a matter of law, [*2]that it had mailed its bills to defendant (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018