SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
July 5, 2011
AVE T MPC CORP. AS ASSIGNEE OF JULIANA KOGAN,
AUTO ONE INSURANCE COMPANY,
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 4, 2009.
Ave T MPC Corp. v Auto One 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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on July 5, 2011
PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ
The order, insofar as appealed from, denied plaintiff's motion for summary judgment.
ORDERED that 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 appeals from so much of an order as denied its motion for summary judgment.
A no-fault provider establishes its prima facie entitlement to summary
judgment by proof of the submission to the defendant of a claim form,
proof of the fact and the amount of the loss sustained, and proof
either that the defendant had failed to pay or deny the claim within
the requisite 30-day period, or that the 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 ; see also New York
& Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 ).
Here, while plaintiff demonstrated that the claims were not paid, it failed to demonstrate either
that defendant had failed to deny the claim or that defendant had issued a legally insufficient denial of
claim form. Accordingly, the order, insofar as appealed from, is affirmed.
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: July 05, 2011
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