May 19, 2015

Gutierrez v Allstate Ins. Co. (2015 NY Slip Op 50799(U))

https://www.beynensonlaw.com/case-law/gutierrez-v-allstate-ins-co-2015-ny-slip-op-50799u/

Court: Appellate Term, Second Department
Decided: May 19, 2015
Citation: 2015 NY Slip Op 50799(U) · 47 Misc 3d 152(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Gutierrez v Allstate Ins. Co., 47 Misc 3d 152(A), 2015 NY Slip Op 50799(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's unopposed summary judgment motion failed because its papers did not establish an untimely or legally deficient denial. In an action for assigned no-fault benefits, the provider failed to show either that the insurer had not paid or denied the claim within the 30-day period under Insurance Law § 5106 (a), or that a timely denial was conclusory, vague or without merit as a matter of law. The Appellate Term, Second Department, rejected the provider's argument that it had established entitlement to summary judgment and affirmed Civil Court, Kings County's denial of the motion.

Reported in New York Official Reports at Gutierrez v Allstate Ins. Co. (2015 NY Slip Op 50799(U))

[*1]

Gutierrez v Allstate Ins. Co.

2015 NY Slip Op 50799(U) [47 Misc 3d 152(A)]

Decided on May 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2360 K C

Jaime G. Gutierrez as Assignee of MUSTAFA ARSLAN, Appellant, –
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 20, 2012. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, with $25 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 unopposed motion for summary judgment. We affirm.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), 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, 11th & 13th Jud Dists 2011]). Thus, contrary to plaintiff’s argument on appeal, the Civil Court properly found that plaintiff had failed to establish its entitlement to summary judgment.

Accordingly, the order is affirmed.

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

Decision Date: May 19, 2015

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's unopposed motion properly denied because its papers did not show the claim was not paid or denied within 30 days or that a timely denial was conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Gutierrez v Farmington Cas. Co. (2015 NY Slip Op 50781(U))The insurer's motion for summary judgment dismissing the complaint was upheld based on timely mailing of IME notices and the denial.
Gutierrez v Elrac, Inc. (2015 NY Slip Op 51215(U))The insurer's cross motion for summary judgment on its IME-nonappearance defense was granted, and the provider's motion was denied.
Gutierrez v Tri State Consumers Ins. Co. (2015 NY Slip Op 51703(U))The insurer proved a misrepresentation in procuring the policy but failed to establish its materiality.
Bay Ls Med. Supplies, Inc. v Allstate Ins. Co. (2015 NY Slip Op 50802(U))The provider failed to establish that its claim was not timely denied or that a timely denial was legally deficient.
Careplus Med. Supply, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50196(U))A provider need not establish claim forms' admissibility under CPLR 4518 as part of its prima facie entitlement to summary judgment.