Compas Med., P.C. v. Am. Transit Ins. Co.

Full title: Compas Medical, P.C., as Assignee of Caton, Korina, Appellant, v. American…

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

Date published: Sep 8, 2017

2017 N.Y. Slip Op. 51142 (N.Y. App. Term 2017)

65 N.Y.S.3d 490

Opinion

2014-1602 Q C

09-08-2017

Compas Medical, P.C., as Assignee of Caton, Korina, Appellant, v. American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C., for respondent (no brief filed).

MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ

PRESENT: :

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.

Law Office of Jason Tenenbaum, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 12, 2014. The order, insofar as appealed from, denied plaintiff's motion for summary judgment and granted the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action is denied; as so modified, 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court denied plaintiff's motion for summary judgment and granted the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action.

Plaintiff correctly argues that defendant did not demonstrate, as a matter of law, that it had fully paid plaintiff for the claim underlying the first cause of action in accordance with the workers' compensation fee schedule. Consequently, the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action should have been denied. However, plaintiff failed to establish its prima facie entitlement to summary judgment, since the proof submitted by plaintiff failed to establish that the claims 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 denial of claim forms 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 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. Paul Kenny Chief Clerk Decision Date: September 08, 2017