Opinion
No. 2011–3112 KC.
2014-06-13
J.C. HEALING TOUCH REHAB, P.C. as Assignee of Norberto Richards, Appellant, v. AMICA MUTUAL INS. CO., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 1, 2011. The order, insofar as appealed from, denied plaintiff's motion for summary judgment.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff's motion for summary judgment.
A no-fault provider establishes its prima facie entitlement to judgment as a matter of law by submitting evidence, in admissible form, that the claim forms were mailed to and received by the defendant insurer, which failed to pay or deny the claims within the prescribed 30–day period ( see Insurance Law § 5106[a]; Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 114 A.D.3d 33, 35 [2013] ), or issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 A.D.3d 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, 11th & 13th Jud Dists 2011] ).
While the supporting affidavit by plaintiff's billing agent established that plaintiff had mailed the claim forms in question to defendant, and that defendant had failed to pay those claims within the requisite 30–day period, the affidavit failed to demonstrate either that defendant had failed to deny the claims within the requisite 30–day period or that defendant had issued timely denial of claim forms which were conclusory, vague or without merit as a matter of law. As plaintiff failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law, plaintiff's motion for summary judgment was properly denied ( see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 114 A.D.3d 33, 977 N.Y.S.2d 292).
Accordingly, the order, insofar as appealed from, is affirmed.
WESTON, J.P., ALIOTTA and SOLOMON, JJ., concur.