Delta Diagnostic Radiology, P.C. v. Allstate Ins. Co.

Full title: Delta Diagnostic Radiology, P.C. as Assignee of CATHERINE WESTE…

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

Date published: Aug 5, 2015

2015 N.Y. Slip Op. 51216 (N.Y. App. Term 2015)

26 N.Y.S.3d 213

Opinion

2013-389 Q C

08-05-2015

Delta Diagnostic Radiology, P.C. as Assignee of CATHERINE WESTE, Appellant, August 5, 2015 v. Allstate Insurance Company, Respondent.

PESCE, P.J., ALIOTTA and SOLOMON, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered September 24, 2012. 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's moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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, 11th & 13th Jud Dists 2011]). Thus, plaintiff's motion for summary judgment was properly denied.

However, as plaintiff argues on appeal, defendant failed to submit sufficient proof that the insurance policy at issue had been cancelled. While defendant submitted a copy of a cancellation letter, it did not submit any proof that the letter had been mailed to its insured as required by Vehicle and Traffic Law § 313 (1) (a). Therefore, defendant should not have been awarded summary judgment dismissing the complaint.

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 05, 2015