Opinion
2014-1973 Q C
09-22-2017
Adelaida M. Laga, PT, as Assignee of Noel, Jocelyn, Appellant, v. American Commerce Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
PRESENT: :
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.
Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 30, 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 the branch of defendant's cross motion seeking summary judgment dismissing the sixth cause of action 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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath.
Plaintiff correctly argues that defendant failed to establish that it had timely denied the claim underlying the sixth cause of action. Thus, the branch of defendant's cross motion seeking summary judgment dismissing that cause of action should have been denied. However, plaintiff is not entitled to summary judgment on this cause of action, as plaintiff failed to establish that the claim 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 a timely denial of this claim that was 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]).
The order is affirmed as to the remaining causes of action for the reason stated in Laga, as Assignee of Noel, Jocelyn v American Commerce Ins. Co. (— Misc 3d —, 2017 NY Slip Op — [appeal No. 2014-2015 Q C], decided herewith).
Accordingly, the order is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing the sixth cause of action is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 22, 2017