July 9, 2009

Crossbay Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2009 NY Slip Op 51496(U))

Headnote

The relevant facts considered by the court were that Crossbay Acupuncture, P.C. was seeking to recover assigned first-party no-fault benefits from Nationwide Mutual Insurance Co. The main issue decided in this case was whether Crossbay Acupuncture, P.C. was entitled to summary judgment in their favor. The holding of the court was that Crossbay Acupuncture, P.C. was entitled to summary judgment as they had established their prima facie entitlement to such relief under the Insurance Law. The court found that since Nationwide Mutual Insurance Co. did not submit opposing papers, the Civil Court had improperly denied Crossbay Acupuncture, P.C.'s unopposed motion for summary judgment. The order was reversed, and the matter was remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney's fees.

Reported in New York Official Reports at Crossbay Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2009 NY Slip Op 51496(U))

Crossbay Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2009 NY Slip Op 51496(U)) [*1]

Crossbay Acupuncture, P.C. v Nationwide Mut. Ins. Co.

2009 NY Slip Op 51496(U) [24 Misc 3d 136(A)]

Decided on July 9, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-853 K C.

Crossbay Acupuncture, P.C. a/a/o KELVIN MACK, Appellant,
against
Nationwide Mutual Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Chan, J.), entered October 5, 2007. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment established plaintiff’s prima facie entitlement to such relief (see Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]). Defendant did not submit papers opposing plaintiff’s motion. Consequently, the Civil Court improperly denied plaintiff’s unopposed motion for summary judgment.

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009