October 3, 2012

Okslen Acupuncture, P.C. v N.Y. Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51887(U))

Headnote

The relevant facts of the case were that Okslen Acupuncture, P.C. brought a lawsuit against NY Central Mutual Fire Ins. Co. for failing to timely deny the claim for first-party no-fault benefits within the prescribed 30-day period. The main issue decided was whether the defendant insurer was precluded from asserting the defense that the fees charged were excessive due to not timely denying the claim. The holding of the case was that the defendant insurer was indeed precluded from asserting the defense, and the court granted plaintiff summary judgment in the principal amount demanded in the first cause of action. The court also did not pass upon plaintiff's request for statutory interest and attorneys' fees.

Reported in New York Official Reports at Okslen Acupuncture, P.C. v N.Y. Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51887(U))

Okslen Acupuncture, P.C. v N.Y. Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51887(U)) [*1]

Okslen Acupuncture, P.C. v N.Y. Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 51887(U) [37 Misc 3d 127(A)]

Decided on October 3, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570297/12.

Okslen Acupuncture, P.C., a/a/o Hector Velasquez, Plaintiff-Respondent, – –
against
NY Central Mutual Fire Ins. Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 18, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 18, 2011, modified to the extent of granting, upon a search of the record, plaintiff summary judgment on its first cause of action in the principal sum of $3,126.28; as modified, order affirmed, without costs.

Inasmuch as the record conclusively establishes that the defendant insurer did not timely deny the claim for first-party no-fault benefits within the prescribed 30-day period, it is precluded from asserting the defense that the fees charged were excessive (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [211]). Although plaintiff did not cross-move for summary judgment, we search the record and grant it summary judgment in the principal amount demanded in the first cause of action (see 3212[b]), since defendant’s payment on the claim is overdue and defendant has not raised any other defenses.

We do not pass upon plaintiff’s request for statutory interest and attorneys’ fees, issues not reached below. Our disposition of this appeal is without prejudice to renewal of these issues in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 03, 2012