May 18, 2015

Alleviation Med. Servs., P.C. v Hertz Co. (2015 NY Slip Op 50788(U))

Headnote

In an action by a provider against a rental car company to recover assigned first-party no-fault benefits, the Civil Court had denied the provider's motion and granted the defendant's cross motion for summary judgment. The Appellate Term, Second Department held that the provider's motion was properly denied because its papers did not establish that the claim was not paid or denied within 30 days, or that a timely denial was conclusory, vague or without merit. It also held that the defendant failed to establish as a matter of law that it timely denied the claim under 11 NYCRR 65-3.8. The order was modified to deny the defendant's cross motion and was otherwise affirmed.

Reported in New York Official Reports at Alleviation Med. Servs., P.C. v Hertz Co. (2015 NY Slip Op 50788(U))

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Alleviation Med. Servs., P.C. v Hertz Co.

2015 NY Slip Op 50788(U) [47 Misc 3d 151(A)]

Decided on May 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-221 K C

Alleviation Medical Services, P.C. as Assignee of GRETA MARTINELLI, Appellant,

against

Hertz Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 14, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross 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, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff’s motion was properly denied, as its moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period, or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; 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]). However, defendant’s cross motion should also have been denied, as defendant failed to establish, as a matter of law, that it had timely denied the claim at issue (see 11 NYCRR 65-3.8).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Decision Date: May 18, 2015