December 7, 2012

Lenox Hill Radiology, P.C. v Redland Ins. Co. (2012 NY Slip Op 52263(U))

Headnote

The relevant facts the court considered in this case were that Lenox Hill Radiology, P.C. was seeking to recover assigned first-party no-fault benefits from Redland Insurance Company. Redland Insurance Company moved for summary judgment to dismiss the complaint, arguing that the denial of claim had been issued in duplicate. The main issue decided was whether the denial of claim had been issued in duplicate. The holding of the case was that the appellate court reversed the lower court's decision, stating that the affidavit submitted by the defendant established that the denial of claim had been issued in duplicate. Therefore, defendant's motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Lenox Hill Radiology, P.C. v Redland Ins. Co. (2012 NY Slip Op 52263(U))

Lenox Hill Radiology, P.C. v Redland Ins. Co. (2012 NY Slip Op 52263(U)) [*1]

Lenox Hill Radiology, P.C. v Redland Ins. Co.

2012 NY Slip Op 52263(U) [37 Misc 3d 140(A)]

Decided on December 7, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2012

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

PRESENT: : RIOS, J.P., ALIOTTA and SOLOMON, JJ
2011-1229 K C.

Lenox Hill Radiology, P.C. as Assignee of JOSE RONDON, Respondent, —
against
Redland Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), dated February 18, 2011. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Although the Civil Court denied defendant’s unopposed motion, it held that the only issue to be resolved at trial was whether defendant had issued the denial of claim form in duplicate.

Contrary to the finding of the Civil Court, the affidavit submitted by defendant in support of its motion established that the denial of claim had been issued in duplicate (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since the Civil Court found that defendant is otherwise entitled to judgment, and as plaintiff cannot be heard to challenge that finding in light of plaintiff’s failure to oppose defendant’s motion for summary judgment dismissing the complaint, defendant’s motion is granted (see Delta [*2]Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: December 07, 2012