Neptune Med. Care, P.C. v. Allstate Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 20, 2018
• Docket: 2018 NYSlipOp 51150(U)
• Status: Published

Opinion

Neptune Medical Care, P.C., as Assignee of Warren McCausland, Respondent,

against

Allstate Insurance Co., Appellant.

Law Office of Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant. Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 18, 2014, deemed from a judgment of that court entered November 12, 2015 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 18, 2014 order denying defendant's motion for summary judgment dismissing the complaint and granting the branches of plaintiff's cross motion seeking summary judgment and costs, awarded plaintiff the principal sum of $3,793.02 and, among other things, "other costs" in the amount of $250.

ORDERED that the judgment is reversed, without costs, so much of the order entered June 18, 2014 as granted the branches of plaintiff's cross motion seeking summary judgment and costs is vacated, and those branches of plaintiff's cross motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations, and plaintiff cross-moved for summary judgment and for costs and attorney's fees. By order entered June 18, 2014, the Civil Court denied defendant's motion and granted the branches of plaintiff's cross motion seeking summary judgment and costs. A judgment awarding plaintiff the principal sum of $3,793.02 and, among other things, "other costs" in the amount of $250, was entered on November 12, 2015. Plaintiff's appeal from the June 18, 2014 order is deemed to be from the judgment entered pursuant thereto (see CPLR 5501 [c]).

As defendant's moving papers failed to establish, as a matter of law, that defendant had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim forms, the Civil Court properly determined that defendant was not entitled to summary judgment dismissing the complaint.

We further find that plaintiff's cross motion papers did not establish either that defendant had failed to timely deny the claims or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5102 [a]; 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]). As plaintiff failed to establish its prima facie case, the branch of its cross motion seeking summary judgment should have been denied. We note that plaintiff failed to demonstrate that defendant or its counsel had engaged in sanctionable conduct (see 22 NYCRR 130-1.1 [c]). Consequently, we also deny the branch of plaintiff's cross motion seeking costs.

Accordingly, the judgment is reversed, so much of the order entered June 18, 2014 as granted the branches of plaintiff's cross motion seeking summary judgment and costs is vacated, and those branches of plaintiff's cross motion are denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 20, 2018