Opinion
No. 570297/12.
2012-10-3
OKSLEN ACUPUNCTURE, P.C., a/a/o Hector Velasquez, Plaintiff–Respondent, v. NY CENTRAL MUTUAL FIRE INS. CO., Defendant–Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 18, 2011, which denied its motion for summary judgment dismissing the complaint.
Present: SHULMAN, J.P., HUNTER, JR., TORRES, JJ.
PER CURIAM.
Order (Fernando Tapia, J.), entered March 18, 2011, modified to the extent of granting, upon a search of the record, plaintiff summary judgment on its first cause of action in the principal sum of $3,126.28; as modified, order affirmed, without costs.
Inasmuch as the record conclusively establishes that the defendant insurer did not timely deny the claim for first-party no-fault benefits within the prescribed 30–day period, it is precluded from asserting the defense that the fees charged were excessive (see Mercury Cas. Co. v. Encare, Inc., 90 AD3d 475[211] ). Although plaintiff did not cross-move for summary judgment, we search the record and grant it summary judgment in the principal amount demanded in the first cause of action ( see 3212[b] ), since defendant's payment on the claim is overdue and defendant has not raised any other defenses.
We do not pass upon plaintiff's request for statutory interest and attorneys' fees, issues not reached below. Our disposition of this appeal is without prejudice to renewal of these issues in Civil Court.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.