Opinion
No. 2014–491 Q C.
11-01-2016
DAILY MEDICAL EQUIPMENT DISTRIBUTION CENTER, INC., as Assignee of Jurcelin Garcia, Appellant, v. AMERICAN TRANSIT INS. CO., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 11, 2014. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 and granted defendant's cross motion for summary judgment dismissing the complaint.
Plaintiff correctly argues on appeal that, because defendant failed to submit proof by someone with personal knowledge attesting to the nonappearance of plaintiff for the independent medical examinations in question, defendant's cross motion for summary judgment dismissing the complaint should have been denied (see Bright Med. Supply Co. v. IDS Prop. & Cas. Ins. Co., 40 Misc.3d 130[A], 2013 N.Y. Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v. Safeco Natl. Ins. Co., 39 Misc.3d 130[A], 2013 N.Y. Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] ).
However, contrary to plaintiff's remaining contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 NY3d 498 [2015] ) or that defendant had issued timely denials of claim that were 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 N.Y. Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] ).
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.