Reported in New York Official Reports at Metro Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51517(U))
| Metro Health Prods., Inc. v American Tr. Ins. Co. |
| 2016 NY Slip Op 51517(U) [53 Misc 3d 140(A)] |
| Decided on October 13, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2498 K C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 17, 2013. 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 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 motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the examination under oath (EUO) scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff’s assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at Sal Med., P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51516(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Praetorian Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered June 21, 2013. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $3,551.02 for services rendered on July 23, 2008 and upon claims for services rendered from March 24, 2009 to April 23, 2009.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $3,551.02 forservices rendered on July 23, 2008 and upon claims for services rendered from March 24, 2009 to April 23, 2009, are granted.
In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on various grounds, including lack of medical necessity. As to so much of the complaint as sought to recover upon a claim in the sum of $3,551.02 for services rendered on July 23, 2008 and upon claims for services rendered from March 24, 2009 to April 23, 2009, the Civil Court, by order entered June 21, 2013, denied both the motion and the cross motion, but limited the issues for trial to the medical necessity of those claims (see CPLR 3212 [g]). As limited by its brief, defendant appeals from so much of the Civil Court’s order as denied the branches of its cross motion seeking summary judgment dismissing those claims.
For the reasons stated in AL Acupuncture, P.C., as Assignee of Yana Simonyan v Praetorian Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-2432 K C], decided herewith), the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $3,551.02 for services rendered on July 23, 2008 and upon claims for services rendered from March 24, 2009 to April 23, 2009 are granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at Al Acupuncture, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51515(U))
| AL Acupuncture, P.C. v Praetorian Ins. Co. |
| 2016 NY Slip Op 51515(U) [53 Misc 3d 140(A)] |
| Decided on October 13, 2016 |
| 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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2432 K C
against
Praetorian Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered June 21, 2013. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009 is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on various grounds, including lack of medical necessity. As to so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009, the Civil Court denied both the motion and the cross motion, but limited the issues for trial to the medical necessity of those claims (see CPLR 3212 [g]). As limited by its brief, defendant appeals from so much of the order as denied the branch of its cross motion seeking summary judgment dismissing those claims.
In support of its cross motion, defendant submitted a sworn report of an independent medical examination, which report set forth a factual basis and medical rationale for the examiner’s determination that there was a lack of medical necessity for the services at issue. Plaintiff failed to oppose defendant’s cross motion. As defendant’s prima facie showing that the services were not medically necessary was unrebutted by plaintiff, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on the claims at issue, the order, insofar as appealed from, is reversed and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009 is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Bus. v Professional Health Radiology (2016 NY Slip Op 06767)
| Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Bus. v Professional Health Radiology |
| 2016 NY Slip Op 06767 [143 AD3d 536] |
| October 13, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Unitrin Advantage Insurance Company
Kemper A. Unitrin Business, Appellant-Respondent, v Professional Health Radiology, as Assignee of Anggi Camacho, Appellant. Unitrin Advantage Insurance Company Kemper A. Unitrin Business, Appellant, v Professional Health Radiology, as Assignee of Nestor Camacho, Respondent. |
Gullo & Associates, LLC, Brooklyn (Cristina Carollo of counsel), for appellant-respondent/appellant.
Gary Tsirelman, P.C., Brooklyn (David M. Gottlieb and Stefan Belinfanti of counsel), for respondent-appellant/respondent.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered January 29, 2014, which, to the extent appealed from as limited by the briefs, denied and dismissed petitioner Unitrin’s petition to vacate a no-fault master arbitration award dated June 3, 2013, and granted respondent Professional Health Radiology as assignee of Nestor Camacho’s counterclaim to the extent of confirming the award, unanimously affirmed, without costs. Order, same court (Lawrence K. Marks, J.), entered March 14, 2014, which denied Unitrin’s petition to vacate a no-fault master arbitration award dated June 3, 2013, granted respondent Professional Health Radiology as assignee of Anggi Camacho’s counterclaim to confirm the award, and denied Professional Health’s counterclaim for attorney’s fees in connection with the court proceeding, unanimously modified, on the law, to grant the counterclaim for attorney’s fees, and remand the matter to Supreme Court for further proceedings consistent with this decision, and otherwise affirmed, without costs.
Unitrin failed to establish that it was entitled to deny Professional Health’s claims on the ground that Professional Health’s assignors, Nestor Camacho and Anggi Camacho, did not appear for independent medical examinations (IMEs) (see American Tr. Ins. Co. v Clark, 131 AD3d 840 [1st Dept 2015]). The no-fault regulations include mandatory notice requirements governing insurer requests for both IMEs and examinations under oath (11 NYCRR 65-3.5 [e]). The regulations expressly provide that the insurer “shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request” (id.). Unitrin failed to establish that the requisite regulatory language was contained within its November 30, 2011 letters sent to the assignors, and, based on the multiple errors committed by Unitrin, it failed to establish inadvertent law office error, or that the cases should be remanded, in the interest of justice, for a new arbitration hearing.
[*2] Pursuant to Insurance Law § 5106 (a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations.” “In a proceeding for judicial review of an award by a master arbitrator, an attorney’s fee shall be fixed by the court adjudicating the matter” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 139 AD3d 947, 948 [2d Dept 2016]; see 11 NYCRR 65-4.10 [j] [4]). Professional Health, therefore, is entitled to attorney’s fees in connection with the Supreme Court proceeding regarding Anggi Camacho, and we remand the matter for further proceedings to determine those fees. Professional Health did not file a cross appeal with respect to the denial of its counterclaim for attorney’s fees in connection with the Supreme Court proceeding regarding Nestor Camacho, and this Court lacks the power to grant the counterclaim (see Hecht v City of New York, 60 NY2d 57 [1983]). Concur—Renwick, J.P., Manzanet-Daniels, Gische and Webber, JJ.
Reported in New York Official Reports at Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C. (2016 NY Slip Op 06680)
| Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C. |
| 2016 NY Slip Op 06680 [143 AD3d 768] |
| October 12, 2016 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Global Liberty Insurance Company,
Appellant, v W. Joseph Gorum, M.D., P.C., as Assignee of Maldotha Conyers, et al., Respondents. |
The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.
Law Offices of Economou & Economou, P.C., Syosset, NY (Ralph C. Caio of counsel), for respondent Laxmidhar Diwan, M.D., as assignee of Jerry Souffront.
In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brown, J.), entered March 9, 2016, as denied those branches of its motion which were (a) for leave to enter a default judgment against the defendant W. Joseph Gorum, M.D., P.C., as assignee of Maldotha Conyers, and (b) for summary judgment on the complaint insofar as asserted against the defendant Laxmidhar Diwan, M.D., as assignee of Jerry Souffront, declaring that it was not obligated to provide insurance coverage, and dismissing the second counterclaim asserted by that defendant.
Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff’s motion which was for leave to enter a default judgment against the defendant W. Joseph Gorum, M.D., P.C., as assignee of Maldotha Conyers, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff, a no-fault insurance carrier, commenced this action pursuant to Insurance Law § 5106 (c) for a de novo adjudication of two separate insurance disputes concerning the denial of no-fault claims involving the defendant W. Joseph Gorum, M.D., P.C., as assignee of Maldotha Conyers, and the defendant Laxmidhar Diwan, M.D., as assignee of Jerry Souffront. Both Gorum and Diwan had been awarded more than $5,000 against the plaintiff as a result of master arbitration awards.
The plaintiff moved, inter alia, for leave to enter a default judgment against Gorum, which failed to answer the complaint or appear in this action. The Supreme Court denied that branch of the plaintiff’s motion with respect to Gorum on the basis that the plaintiff failed to submit an affirmation from its expert with an original signature. The plaintiff also moved for summary judgment on the complaint insofar as asserted against Diwan declaring it was not obligated to provide insurance coverage for the services Diwan performed for Souffront, since such services were [*2]not medically necessary to treat injuries Souffront sustained in a motor vehicle accident, and for summary judgment dismissing Diwan’s second counterclaim, which alleged breach of contract. The court denied those branches of the plaintiff’s motion with respect to Diwan, determining that the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law.
On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to file proof of (1) service of the summons and complaint, (2) the facts constituting the claim, and (3) the other party’s default (see CPLR 3215 [f]; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785 [2015]; Fried v Jacob Holding, Inc., 110 AD3d 56, 59 [2013]). To demonstrate “the facts constituting the claim,” the movant need only submit sufficient proof to enable a court to determine if the claim is viable (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Fried v Jacob Holding, Inc., 110 AD3d at 60; Neuman v Zurich N. Am., 36 AD3d 601, 602 [2007]). Here, the Supreme Court found that the plaintiff submitted proof of service of the summons and complaint upon Gorum (see Business Corporation Law § 306 [b] [i]; CPLR 3215 [g] [4] [i]) and that Gorum had not answered or appeared in this action, thereby admitting all traversable allegations (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]). However, the court erred in denying that branch of the plaintiff’s motion which was for leave to enter a default judgment against Gorum on the basis that its expert’s affirmation, in the form of a peer review, did not have an original signature (see CPLR 2101 [e]; Rechler Equity B-1, LLC v AKR Corp., 98 AD3d 496, 497 [2012]; Billingy v Blagrove, 84 AD3d 848, 849 [2011]; Campbell v Johnson, 264 AD2d 461, 461 [1999]). Further, the plaintiff’s expert’s affirmed peer review demonstrated facts constituting the cause of action asserted against Gorum (see Woodson v Mendon Leasing Corp., 100 NY2d at 71). Thus, the court should have granted the plaintiff leave to enter a default judgment against Gorum.
However, the Supreme Court properly denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against Diwan and dismissing Diwan’s second counterclaim. The peer review reports and medical records submitted in support of this motion failed to demonstrate as a matter of law that the surgery performed by Diwan on Souffront was not medically necessary (see Cortland Med. Supply, Inc. v 21st Century Centennial Ins. Co., 46 Misc 3d 136[A], 2014 NY Slip Op 51886[U], *1 [App Term, 1st Dept 2014]; Amherst Med. Supply, LLC v A. Cent. Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51800[U] [App Term, 1st Dept 2013]; Premier Health Choice Chiropractic, P.C. v Praetorian Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51802[U] [App Term, 1st Dept 2013]; Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). In light of the plaintiff’s failure to meet its prima facie burden, this Court need not consider the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Balkin, J.P., Austin, Sgroi and Duffy, JJ., concur.
Reported in New York Official Reports at Renelique v American Tr. Ins. Co. (2016 NY Slip Op 51546(U))
| Renelique v American Tr. Ins. Co. |
| 2016 NY Slip Op 51546(U) [53 Misc 3d 143(A)] |
| Decided on October 11, 2016 |
| 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 October 11, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1324 Q C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered May 23, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint as premature because plaintiff had failed to provide requested verification.
For the reasons stated in Performance Plus Med., P.C., as Assignee of Melanna Luckie v Nationwide Ins. (___ Misc 3d ___, 2016 NY Slip Op ______ [appeal No. 2013-2766 Q C], decided herewith), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 11, 2016
Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51545(U))
| Compas Med., P.C. v American Tr. Ins. Co. |
| 2016 NY Slip Op 51545(U) [53 Misc 3d 143(A)] |
| Decided on October 11, 2016 |
| 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 October 11, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1194 Q C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered April 24, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first through fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through fifth causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without 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 the branches of plaintiff’s motion seeking summary judgment on the first through fifth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that they were premature because plaintiff had failed to provide requested verification.
For the reasons stated in Performance Plus Med., P.C., as Assignee of Melanna Luckie v Nationwide Ins. (___ Misc 3d ___, 2016 NY Slip Op _____ [appeal No. 2013-2766 Q C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through fifth causes of action are denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 11, 2016
Reported in New York Official Reports at Arguelles, M.D., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51544(U))
| Arguelles, M.D., P.C. v American Tr. Ins. Co. |
| 2016 NY Slip Op 51544(U) [53 Misc 3d 143(A)] |
| Decided on October 11, 2016 |
| 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 October 11, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-833 Q C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 26, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the second through sixth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the second through sixth causes of action are 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 so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the second through sixth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that they were premature because plaintiff had failed to provide requested verification.
For the reasons stated in Performance Plus Med., P.C., as Assignee of Melanna Luckie v Nationwide Ins. (___ Misc 3d ___, 2016 NY Slip Op ______ [appeal No. 2013-2766 Q C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the second through sixth causes of action are denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 11, 2016
Reported in New York Official Reports at Laga v Hereford Ins. Co. (2016 NY Slip Op 51543(U))
| Laga v Hereford Ins. Co. |
| 2016 NY Slip Op 51543(U) [53 Misc 3d 142(A)] |
| Decided on October 11, 2016 |
| 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 October 11, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-792 Q C
against
Hereford Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 24, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification.
For the reasons stated in Performance Plus Med., P.C., as Assignee of Melanna Luckie v Nationwide Ins. (__ Misc 3d ___, 2016 NY Slip Op ______ [appeal No. 2013-2766 Q C], decided herewith), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 11, 2016
Reported in New York Official Reports at LMS Acupuncture, P.C. v Nationwide Ins. (2016 NY Slip Op 51542(U))
| LMS Acupuncture, P.C. v Nationwide Ins. |
| 2016 NY Slip Op 51542(U) [53 Misc 3d 142(A)] |
| Decided on October 11, 2016 |
| 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 October 11, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-774 Q C
against
Nationwide Ins., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered March 17, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification.
For the reasons stated in Performance Plus Med., P.C., as Assignee of Melanna Luckie v Nationwide Ins. (___ Misc 3d ____, 2016 NY Slip Op ______ [appeal No. 2013-2766 Q C], decided herewith), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 11, 2016