Alrof, Inc. v Country Wide Ins. Co. (2011 NY Slip Op 52297(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered April 16, 2010, deemed from a judgment of the same court entered May 13, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 16, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,365.75.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the 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]; 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]). Here, while plaintiff demonstrated that the claims had not been paid, it failed to demonstrate that, with respect to its claim seeking $1,291, defendant’s denial of claim form was conclusory, vague or without merit as a matter of law. Consequently, as defendant argues, plaintiff did not establish its prima facie case with respect to this claim. As to plaintiff’s claim for $1,074.75, a triable issue of fact exists since defendant demonstrated that its time to pay or deny the claim was tolled and that defendant had timely denied the claim on the ground [*2]that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs) (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.8 [j]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]). Accordingly, plaintiff was not entitled to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Defendant’s contention that its cross motion for summary judgment dismissing the complaint should have been granted lacks merit. Inasmuch as defendant failed to proffer evidence in admissible form from someone with personal knowledge of the assignor’s nonappearances at the IMEs, defendant failed to establish that the assignor had failed to appear at the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; see also LDE Med. Servs., P.C. v Interboro Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50946[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Rios, J.P., Weston and Golia, JJ., concur.
Decision Date: December 19, 2011