October 30, 2015

Gutierrez v Allstate Ins. Co. (2015 NY Slip Op 51596(U))

Headnote

The court considered the appeal of a provider seeking to recover assigned first-party no-fault benefits. The main issue decided was whether the provider's motion for summary judgment should have been granted. The court held that the plaintiff failed to establish its entitlement to judgment as a matter of law, as it did not show that the defendant had failed to deny the claim within the 30-day period required by law or that the denial of claim was conclusory, vague, or without merit. Therefore, the court affirmed the lower court's order denying the motion for summary judgment.

Reported in New York Official Reports at Gutierrez v Allstate Ins. Co. (2015 NY Slip Op 51596(U))

Gutierrez v Allstate Ins. Co. (2015 NY Slip Op 51596(U)) [*1]

Gutierrez v Allstate Ins. Co.

2015 NY Slip Op 51596(U) [49 Misc 3d 141(A)]

Decided on October 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1353 K C

Jaime G. Gutierrez as Assignee of Tyrone Carter, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 13, 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 motion for summary judgment.

Plaintiff’s contention that its motion for summary judgment should have been granted lacks merit. Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law since it did not establish either that defendant had failed to deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), 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]).

Accordingly, the order is affirmed.

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

Decision Date: October 30, 2015