Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 19, 2009, deemed from a judgment of the same court entered April 7, 2009 (see CPLR 5512 [a]; Neuman v Otto, Inc. v GEICO Ins. Co.
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT:PESCE, P.J., WESTON and RIOS, JJ
The judgment, entered pursuant to the March 19, 2009 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $1,723.
ORDERED that the judgment is reversed, without costs, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff's motion for summary judgment. We deem defendant's appeal to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 ).
Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law because it did not demonstrate that defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 ; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 ; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 ). Since plaintiff failed to establish its prima facie case, we need not consider the sufficiency of defendant's papers in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion is denied.
Pesce, P.J., and Weston J., concur.
Rios, J., dissents in a separate memorandum.
Rios, J., dissents and votes to affirm the judgment in the following memorandum:
The plaintiff provider made a prima facie showing of its entitlement to summary judgment by submitting evidentiary proof that the medical supplies had been provided to plaintiff's assignor. It further submitted irrefutable evidence that the prescribed statutory billing forms had been mailed and received by defendant insurer, and that the claims remained unpaid (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 ). There is no assertion in the record that a partial payment of the claim was made (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 ), therefore, it was incumbent upon defendant to demonstrate a timely denial. In opposition to the motion, defendant submitted the affidavit of an employee who had no personal knowledge of when the denial of claim forms were mailed to plaintiff (Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 ), therefore, the Civil Court properly granted summary judgment to plaintiff. Accordingly, I vote to affirm the judgment.