Great Health Care Chiropractic, P.C. v. Unitrin Direct Ins. Co.

Appellate Terms of the Supreme Court of New York

Great Health Care Chiropractic, P.C. v. Unitrin Direct Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 16, 2016

Docket2016 NYSlipOp 50373(U)

StatusPublished

This text of Great Health Care Chiropractic, P.C. v. Unitrin Direct Ins. Co. (Great Health Care Chiropractic, P.C. v. Unitrin Direct Ins. Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Great Health Care Chiropractic, P.C. v. Unitrin Direct Ins. Co., (N.Y. Ct. App. 2016).

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Opinion

Great Health Care Chiropractic, P.C. as Assignee of JUNIOR NOEL, Appellant,

against

Unitrin Direct Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 9, 2013. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered July 9, 2013, the Civil Court granted defendant's motion and denied plaintiff's cross motion.

As defendant's moving papers did not establish that defendant had timely denied the claim at issue, defendant failed to establish its entitlement to judgment as a matter of law dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Consequently, defendant's motion should have been denied.

However, contrary to plaintiff's contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (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 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]).

Accordingly, the order is modified by providing that defendant's motion for summary judgment is denied.

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

Decision Date: March 16, 2016

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Great Health Care Chiropractic, P.C. as Assignee of JUNIOR NOEL, Appellant,

against

Unitrin Direct Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 9, 2013. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered July 9, 2013, the Civil Court granted defendant's motion and denied plaintiff's cross motion.

As defendant's moving papers did not establish that defendant had timely denied the claim at issue, defendant failed to establish its entitlement to judgment as a matter of law dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Consequently, defendant's motion should have been denied.

However, contrary to plaintiff's contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (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 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]).

Accordingly, the order is modified by providing that defendant's motion for summary judgment is denied.

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

Decision Date: March 16, 2016

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